In the end, we can't win with either the rigidity of the conservative position or the historical guilt trip of the liberal. A little flexibility will go a long way. The government as a manager cannot be held to the same strict standards that are applicable to the government as a regulator. The libertarian therefore becomes a moderate. He would keep the tests, and allow New Haven to promote the top of the African-American group to the prejudice of some white candidates. These rules should be announced in advance and after public deliberation. If you are happy with this solution, you don't understand the problem. If you are unhappy with it, come up with a better alternative.
I think it's problematic for a variety of reasons for the government to utilize a relevant qualifying test that has been intentionally prescreened to avoid prejudicing any group, and then throw out the test to the detriment of individuals who passed the test, and to the benefit of those who did not.
On the other hand, various pro-affirmative action arguments raised by Epstein, such as insuring the public legitimacy of government agencies, have some merit. So I'll take Epstein up on his challenge, and come up with a better alternative: validate the results of this test, but use a different test next time, one that will still result in screening for qualified candidates, but may not have the same disparate racial impact.
As in the Court's recent school desegregation cases, it's the difference between assigning particular individuals to a given school instead of their local school solely because of their race, and initially choosing school boundaries that will result in more integrated schools. Both decisions take race into account, but I find the former troubling and the latter fine, a distinction made with some aplomb by Justice Kennedy in the school cases.
No, it's not. The difference between the two situations is that in the former, race is factored into individual decisions, whereas in the second, race is factored in only in the aggregate.
Ricci is the latter, not the former.
The more accurate analogy is choosing school boundaries that are supposed to result in integrated schools, finding that there is still segregation, and then redrawing the boundaries.
Let the test be a factor, but not the sole factor. For example, let everyone who passed the test be eligible, but don't try to use test score as a proxy for leadership qualities, or ability to organize men and materials under pressure.
Would you use scores on a special "Heroism" exam as a basis for awarding the Medal of Honor?
I am sure there were a whole other bunch of unnoticed disparate impacts.
Disparate impact itself is a bad concept. If it should be anytjing it should only be when a criterion is invented on purpose or is useless.
Now the next time they do the same test they might get a different result a little nmore toward randomness.
What academic would do empirical research comparing, e.g., the amount of test preparation spent by members of different racial groups? If the research showed that blacks prepare less than whites and Asians, would that research be published?
Answer those two questions, and you realize that we are all pretending to talk about the "real" issues; meanwhile, we are avoiding the real issues.
All evidence suggests the City really did do its best to screen applicants based on merit. The only complaint is that this didn't produce the "desired" racial results.
Either that's good enough reason to change the test or it's not. The court has said no. If you say yes, then you agree with panel and disagree with the court.
Who knew that putting out fires could result in racial preferences?
Unless it was a multiple choice question such as: Which is the preferred substance to be used for extinguishing a fire?
A) Water
B) Watermelon
C) Gasoline
D) Silly Putty.
This is the level as to what we are debating here.
Now we're coming closer to the root cause of the problem. Do people who excel at test preparation similarly excel at leading small groups of fire fighters to extinguish blazes? In other words, can the NHFD demonstrate the business necessity for selecting for promotion those candidates most willing to put in their free time studying for the promotion exam, and those candidates who possess the best study skills?
If you are going to use tests of intellectual skill and/or achievement and select the best scorers, you are going to under-select African-Americans and over-select Southeast Asians (and Jews). Failing to openly acknowledge this only makes it more difficult to deal with the situation
Really? Performance on the promotion exams is the only measure of merit under discussion here.
"
OK - just announce beforehand "We will be giving xx # of promotions to black people because they are black, and for no other reason'.
Problem solved.
I wonder if the proponents of such a system really believe it is honest and fair. Perhaps the divide is whether you believe in individual rights or group rights.
The 14th Amendment does not have a "yeah, but" clause. To quote CJ Roberts, the best way to stop discrimination is to stop discriminating.
Fifty years ago, plenty of municipalities had "race-neutral" hiring and promotion policies that everyone knew were in fact designed to perpetuate pro-white racial discrimination while giving its perpetrators (semi-)plausible deniability.
I don't think any of the critics of New Haven's firefighter-promotion test thought that was what it was designed to do. Rather, they were simply upset that the spoils system of 21st-century urban politics hasn't dumped more goodies into their laps. The failure of the test to result in the racial balance that its critics desire does nothing to deprive the fire department of legitimacy, unless "legitimacy" means delivering spoils to the people who voted the mayor into office.
Have you ever taken an exam? If you had to retake it right now, without any preparation, would you get the same score?
The ability to score high on an exam whose date was announced long in advance, does not mean that you'll retain any of that information even the next day after the exam. People only retain that which they use on a daily (or weekly, or monthly) basis. And if you believe otherwise, Quick: Explain the rule against perpetuities, with examples.
An academic would undertake such a study, and the results would be published. The key would be the explanation for why blacks prepare less than whites and Asians, which would no doubt include cultural factors, previous educational experiences, socioeconomic status, etc. that would tend to absolve blacks for inferior study habits.
I also wish that those who believe race should be a criterion for selecting firefighters could experience having their lives and homes threatened by a Southern California wildfire. Fighting wildfires requires a complex understanding of meteorology, the science of combustion and historical fire behavior. Perhaps those who favor affirmative action should post signs on their homes requesting which race of firefighter they would prefer to save it.
It's almost always white people who build their homes where they're likely to be destroyed by wildfires -- how smart is that?
Not quite: you are going to under- or over-select for populations, but if the tests are unbiased then the selection for qualified individuals will be exactly right.
So much for that "public" option which promises to be anything but, for this very reason.
Bring on Tammany Hall!
"There is likewise no reason for people to believe that performance on a standardized test exemplifies merit."
Other than the fact that all the other alternatives are worse.
Why is objective measure so important? The current civil service rules in many states are the response to past decades where public jobs were the product of political patronage, and the promotion system favored those who knew the right people, or had the right skin color. How do you prove that your subjective promotion decision WAS really fair? That it wasn't racially motivated, that it wasn't favoratism, and that is wasn't a quid pro quo?
That is why standardized tests take on such an importance.
Please, suggest alternatives to a standardized test, to test someone's ability (not past record), that are verifiably objective...
This is simply wrong. A test was given to determine promotions. The test had a racially disparate impact and was abandoned. There was only one decision to abandon the test, which affected a number of people. It was not an individualized decision.
Such a medal rewards past acts. So, no, I would not use an exam, which is irrelevant to those acts, to award the Medal of Honor.
Promotion by pop quiz. I like it.
Tony, I don't know of others, but if I've learned something, it stays learned. If that is not the case for you, maybe your College Diploma (and Law Degree?) should have both a disclaimer and an expiration date.
As to the Rule against Perpetuities, if there is a contingent interest in property, that interest must vest, if at all, within a life in being plus 21 years (and the standard 9 month gestation period for humans, in some cases). For example, if a trust provides for a contingent remainder, then the conditions for vesting such remainder must, under all circumstances, occur within the lifetime of someone now alive, plus 21 years. If there are any conditions to the vesting of the contingent remainder which might come to fruition more than 21 years after everyone now alive has passed on, then the grant of the contingent remainder violates the Rule Against Perpetuities and is invalid. A second example: Assume there is a gift deed which grants land to a City for use as a Park, with the condition that "should the City cease to use and maintain this land as a City Park, fee ownership of the land shall revert to my heirs." This is known as a "possibility of reverter" and creates a contingent interest in the heirs of the Grantor; in this case, the condition which causes the reversion to vest, i.e., ceasing to use and maintain the land as a city park, might not occur for 200 years, well over the threshhold for Rule Against Perpetuities. Thus, the possibility of reverter is void (unless preserved in part by a state cy pres statute).
I think you're framing the issue incorrectly. It would be trivially easy to demonstrate that a person of a certain position should have certain knowledge and that a prerequisite test does a good job of ensuring that the canditate pool has the requisite knowledge.
And if you are worried about people forgetting the information, they can have periodic recertification exams, which certainly exist for some jobs. This strikes me as an incredibly easy issue to deal with.
By setting a pass-fail limit, the NHFD in conjunction with the test company determined what is the requisite knowledge. So ranking passing candidates by score must have a different purpose.
Given that all the candidates knew in advance when the test would be and what would be covered on it, it stands to reason that those who scored highest at least knew the critical data at that time, while there is no evidence whatsoever that those with lower scores ever knew it. So when the time comes for that knowledge to be put to use, who is most likely to have it?
Why don't you just admit that you support racial quotas?
On this and other threads on this subject, you've done everything you could to disparage the test, and the fact that it didn't result in the racial breakdown you prefer.
Suppose that in a given class of potentially promotable candidates, taking everything into account, including oral exams, demonstrated leadership skills, written exams, and prior reviews, most or even all of the firefighters promoted were black, totally disproportionately to the candidate pool. Since my preference is for the best to be leading this critical profession (or any other), it wouldn't bother me a bit. The whites would just have to work harder to get promoted next time.
But suppose they all happened to be white in the next promotional cycle. Bet you would never settle for that, would you, even if by the same criteria were used?
Who said this was fair?
The discussion about whether or not there is a 'less discriminatory' test is moot when you consider that the test in question is the less discriminatory test. New Haven hired the testing company to design it after a series of allegations of disparate racial impact about their last promotional exam.
This case is the functional equivalent of an architect who, after designing a building to withstand a major earthquake, reacts to a small tremor by demolishing the whole thing and starting anew. There's no basis for it.
I've served in both volunteer and paid fire departments, and I will tell you without a doubt that the officers who made it through open-competitive examinations with years of service were by far more capable and deserving of respect than the officers who won popularity contests among the influential Elder Firemen who joined up after they got back from fighting Fritz and Tojo. The only firemen who spoke out against the test were the ones who failed it. That should have been the end of this lawsuit.
As for whether the test might be biased, there is a legend that the ancient Chinese, before they adopted formal civil service exams, used to appoint candidates to the civil service based on their ability to play the game of Go. If the legend is true, it might be an alternative, not susceptible to test bias.
More recently, I got my present position partly as the result of passing a written exam in epidemiology and statistics. My current employers clearly preferred a younger candidate. They hoped I would perform less well than their preferred candidate but my test performance wound up getting me in the door. In my case, the test prevented invidious (age) discrimination.
This statement is really ugly. Besides, many victims of the LA and San Diego county wildfires in the last several years were non-white, e.g. the residents of the Sylmar mobile home park destroyed in a horrific firestorm.
Here's a photo of some of the privileged white victims of the Sayre wildfire in 08. Tony Tutins, I wonder if you would have the guts to confront these people and lecture them about their "whiteness."
You're kidding us, right?
GO was invented in an Asian culture, and since it embodies Asian cultural norms is inherently biased against black people. Using games of GO to determine advancement would therefore systematically discriminate against black people.
See how easy that is?
The only real rule is this: any method of advancement that fails to promote enough black people is not permissible. The challenge is to put enough lipstick on that pig to make it look even-handed.
Maybe the same logic can be applied to professional sports.
Ask yourself this: Do you really want a doctor that was given a medical license based on a race based quota?
Wildfires are an annual event in canyons and foothills. Who builds there? Almost always white people. Even though slopes are subject to the unholy trinity of fire, mudslide, and earthquake. Consider Pepperdine: year after year command headquarters of fires being fought in the local canyons.
Congratulations on finding a picture of a few Hispanics living in trailers. Yep. You completely refuted my thesis.
I have no problem with any pass-fail exam whose questions have been validated for professional competence, even though most takers merely cram sufficiently for the test.
I think a culture a millenium and a half old directed towards studying to pass the Imperial civil service exams, just might account for East Asians' test taking superiority.
Why the hell not?
In the meantime, I find, from associating with the players of many kinds of games, that skill at GO actually seems to correlate well with general aptitude for problem-solving of all kinds, especially in fast-breaking situations involving a high level of complexity (such as firefighting). I would not recommand it as the primary qualifying test, but it could serve as a secondary qualifying test after proficiency in knowledge tests is used for a preliminary screening.
I for one just want the services of the fire department, and I don't much care what the racial composition of the team sent to my house for an emergency is. I suspect my position which match most people's on this. Set a policy, give the test and do the promotions and stop with this racial business already-- everyone is really sick of it.
"I think a culture a millenium and a half old directed towards studying to pass the Imperial civil service exams, just might account for East Asians' test taking superiority."
This is some truth to this notion. If one comes from a family that motivates you to study, then you will do better on a test of acquired skills. However this does not hold for aptitude tests that are heavily g-loaded. You really can't study much for a IQ test. That's the whole point of a general intelligence tests, and as trans racial adoptions studies show family environments matters little. The IQ scores of adopted children better match the IQs of their biological parents, not their adopting parents.
It recognizes that more is better and that it is desirable to promote those with more-than-minimum competency. That's a legitimate "different purpose."
But, there's no reason AT ALL to suppose there is any such test. The test in question had disparate results, because the population taking the test had disparate qualifications. ANY valid test of a population with disparate qualifications will produce disparate results.
Better to openly admit you're advocating a racial quota system, than insist on rejiggering the test until it doesn't actually test merit.
I mean, this really is the heart of the problem, the refusal to admit that the different racial populations actually DO, in practice, have differing qualifications.
More pictures mainly from the 07 San Diego wildfires of privileged "white" fire victims. Maybe people outside of California do not understand how the state's demographics have radically changed in the last 30 years.
Photo 1
Photo 2
Photo 3
Photo 4
Photo 5
Last one is titled "Rigoberto and Bernardina Rozco wait in the Temecula Community recreation centre 23 October 2007" and is courtesy of the BBC.
How do we decide whether or not a test is "competent"? That enough black people pass it? That was the standard in New Haven, and I'm glad it was struck down.
If so, did that municipality sacrifice quality in comparison to New Haven? I highly doubt it, but I guess it's possible.
If it did not sacrifice quality, does that not, at least, show that a municipality can indeed have blacks in the officer ranks by using methods that don't have such a disparate impact?
If merit is the most important thing, why not achieve it w/o tests that o/wise creates barriers to entry to civil service jobs to o/wise meritorious black candidates? Our addiction to such tests is, at times, questionable.
Considering the racial history of the USA, particularly New Haven, Congress, through Title VII, constructed balanced approach to opening up job opportunities to people who were actively denied jobs b/c of their race. These tests are dubious, at best, at weeding out people.
"I mean, this really is the heart of the problem, the refusal to admit that the different racial populations actually DO, in practice, have differing qualifications."
And admitting that truth the first step in any lasting amelioration of that difference.
If you use water on a sodium fire you are going to get people killed. The scene leader needs to have a great deal of knowledge to fight fires safely. How about an aluminum fire? Is it safe to send men to fight fire under a steel joist roof? If so, how long?
If that's what you want, fine (legality aside); but it's hard to see why such a regime would really produce a more accurate result. All forms of testing and filtering are imperfect, but at least objectively scored tests place everyone on the same footing, and complaints from failers that the deck was stacked against them have less weight.
After all, if you think of 'leadership' as involving attention to detail and enormous determination to get the job done no matter how difficult, a person who puts in hundreds of hours successfully mastering the relevant materials has shown those qualities.
Perhaps fire and police departments can (and I'm sure many do) look to the military as an example: the military's more competitive and elite schools, which either flunk large percentages or encourage them to drop out, use a mix of both job-related academic testing and objectively graded practical testing (such as physical fitness, graded patrolling exercises, and other timed practical exams) to select people for elite units and leadership positions. Of course, these methods themselves have been criticized as not producing enough minority graduates, and servicemembers cannot file Title VII complaints.
The two are not necessarily mutually exclusive. The memories of the USA's racial history is indeed short. A white spoils system enforced via the state and vigilante justice that actively terrorized and denied blacks even the ability to marry one another, let alone get an education (it was illegal in many, if not, most of the states with large black populations to be educated) can be extrapolated quite far in terms of benefits and burdens.
For the test to be a valid criteria, it must be predictive of performance.
Once upon a time, I was a commander in a pilot training squadron. During my tenure, there was a commanders' conference to discuss the significant under representation of women and minorities in pilot training.
As it happens, there is an officer qualifying test that all candidates must pass. It is primarily an aptitude test, and there is a minimum score one must obtain in order to be considered for pilot training.
What's more, the test scores correlated very closely with success in the program; the minimum score was chosen because the attrition rate started to become excessive.
The test results had strikingly disparate racial impact: one reason so few African Americans and women were in pilot training is that disproportionately few of the test takers scored highly enough to qualify. Aggravating this was that African Americans and women were under-represented in the test taking population.
Clearly, the test can't solve the latter problem. Nor, for that matter can it solve the former. Because of its predictive value, the test was valid. Because of the composition of the successful takers, it also had racially disparate impact.
The answer is clear: ensure qualifying criteria are predictive of future success.
And get Groupism the heck out of the room.
That wouldn't have helped New Haven here for this particular round of testing. The city agreed to the 60/40 split weight. Any less discriminatory test would have had to meet that criteria. The tests could not be rescored because Title VII itself forbids such (though I understand that to be an amendment of the original language).
I've also seen plenty of complaints that the bar exam is not particularly well tied to the actual practice of law.
The promotional test in this case appears to be different in that at least three people with firefighting credentials (The NH chief and assistant, as well as the outside examiner who testified to the civil service promotion board) all agreed that the test covered material of significant importance to the relevant job.
Question: If a race-neutral exam does not produce a race-neutral result on a single given instance, does that invalidate it? I for one think it bears investigation, but to invalidate it is silly, especially given what I know about the way tests are weighted already to be race-neutral.
Question 2: If the exam is found to be race-neutral in content, but consistently produces the same disparate result, what is that proving? Only two real alternatives present themselves:
a: The test is, despite every effort and despite no distinctive racial bias, actually biased.
b: The minority firefighters taking this exam are disproportionately less knowledgeable about the material.
The idea of using interviews or past conduct or "leadership ability" to equalize the situation is simpering idiocy. This simply brings in the spectre of subjective fiat being used to promote public safety officials. Now THERE'S a recipe for discrimination.
Here's your solution: Keep on monitoring the tests to make sure that there is no race-biasing language, and that it is completely focused on testing the knowledge of firefighting. Then, whoever passes, passes, and color be damned. That is the only reasonable, intelligent, and moral course of action. I am pleased at the outcome of the case, but it saddens me that four of the SCOTUS disagreed. The "legitimacy" of government agencies will always be secured by their effectiveness, not their racial makeup.
William James once wrote an essay, The Moral Equivalent of War, in which he sought an alternative that could achieve the same cultivation of virtue. He didn't find one, and perhaps there is no equivalent. Perhaps we need more wars.
This shows how much Sotomayor is needed on the court to make sure things are done right during the last 19 years preferences are needed before they expire thanks to the mandate of one of the retired right-wing justices, Sandra Day O'Connor.
Blacks under represented in NH fire fighter commanders == BAD.
Blacks over represented in NBA players == GOOD.
Women under represented in Fortune 500 CEOs == BAD.
Women over represented in college graduates == GOOD.
Now, please explain to me why one set of under representations is good and another set of over representations is bad? And please explain why anybody should be making these determinations a priori? And why should they be made based on population representation.
In truth, such logic as above is one of the most dehumanizing things one can pursue. Individuals are more than the 'protected class' they belong to. IMHO those who support affirmative action are driven by predetermined results, and those that aren't are driven by a recognition that the process should be as fair as it can be, but that it will never be perfect.
Yeah, that. The test to be an Army officer is something like this:
Can you misread a map?
Do you suffer total frontal-lobe meltdown under stress?
Do you have less than two years job experience?
Do you descend into incomprehensibility over a radio?
Are you confused as to the direction the "N" represents on a compass?
Have you scored at least four standard deviations above the mean on a Narcissism scale?
If the answer to all these is "yes", congratulations, you are qualified to be an officer in the US Army. I wouldn't let an officer walk my dog much less command a company or put out a fire. And that goes for every color, as does the exception. Former enlisted don't count.
Can you misread a map?
...
Wow. Even by internet standards, that is amazing.
"Didn't a neighboring municipality conduct a test that gave more weight to the oral exam and that test generated a more diverse officer rank?
Soronel Haetir writes:
"That wouldn't have helped New Haven here for this particular round of testing. The city agreed to the 60/40 split weight.
You meant to say that the city agreed to the White controlled-local Fireman's Union struck a deal with the city twenty years ago for the split. I know this from Justice Gingsberg's Dissent. And we also know that INDEED, other local municipalities weighed the testing differently:
"Day contrasted New Haven’s experience with that of nearby Bridgeport, where minority firefighters held one-third of lieutenant and captain positions. Bridgeport, Day observed, had once used a testing process similar to New Haven’s, with a written exam accounting for 70 percent of an applicant’s score, an oral exam for 25 percent, and seniority for the remaining five percent. CA2 App. A830. Bridgeport recognized, however, that the oral component, more so than the written component, addressed the sort of “real-life scenarios” fire officers encounter on the job. Id., at A832. Accordingly, that city “changed the relative weights” to give primacy to the oral exam. Ibid. Since that time, Day reported, Bridgeport had seen minorities “fairly represented” in its exam results. Ibid."
Hey Skipper writes:
"The test results had strikingly disparate racial impact: one reason so few African Americans and women were in pilot training is that disproportionately few of the test takers scored highly enough to qualify. Aggravating this was that African Americans and women were under-represented in the test taking population."
But wouldn't that also be indicative of disparate gender impact as well? I would assume, with the myriad of "those darker groups are less intelligent" allusion-posts on this thread, that your statement would prompt a "men are more intelligent than women" round of posts. Haven't seen those yet, however, but I'm afraid that's the reason why "groupism" isn't going to leave the room...because the house itself is built upon it. Case in point....
mariner writes:
"The only real rule is this: any method of advancement that fails to promote enough black people is not permissible. The challenge is to put enough lipstick on that pig to make it look even-handed."
1. How old is America?
2. When did this supposed "real rule" go into effect?
3. What "rules" were in place before, who benefitted from them, and how long were they in place before your supposed "real rule" took over?
Brett Bellmore writes:
"I mean, this really is the heart of the problem, the refusal to admit that the different racial populations actually DO, in practice, have differing qualifications."
I disagree. That in no way explains the glass ceiling for White women, and the bamboo ceiling for East Asian-Americans. It may be convenient for conservatives to use African-Americans and Hispanics as a focus of anti-preference angst, but IMHO, this is more of a backlash by a White Male Power Structure staring into the face of a demographic wave that won't work to its advantage in the near future.
—Cobra
Can Yale Law? What was your position last summer, when some were claiming that Obama's honors graduation from various exclusive colleges had a relationship to his fitness for high office? Is editing law review a better predictor of presidential achievement than a test on fighting fires is of knowledge about fighting fires?
I can't speak for anyone else, but I respect competence, and nothing else. Which is why I support standardized testing as the best approximation we currently have. I gives a tinker's damn what color people are, as long as they can do the job better than anyone else. If the results of the Ricci test had been reversed, and not enough white firefighters had passed, I'd be telling them to suck it up, study harder, and drive on. Oh, and btw, I missed the monthly meeting of the White Male Power Structure, could you get me the notes?
And just for Skipper :)
The officer corps is where we send all the people too utterly devoid of judgement and intellectual capacity to even be Infantry privates. It gets them out of the way, and makes them feel as if they are important. Everyone wins, unless one of them gets the bright idea of trying to "command" the troops who have been doing their jobs since before the officer could legally drive. The only way the officer corps can be seen as an example of success is in the employment of the mentally handicapped.
I can't speak for anyone else, but I respect competence, and nothing else."
.....Well, at least we know you're not a Republican.
"The officer corps is where we send all the people too utterly devoid of judgement and intellectual capacity to even be Infantry privates."
.....And you didn't vote for John McCain.
"I can't speak for anyone else, but I respect competence, and nothing else. Which is why I support standardized testing as the best approximation we currently have."
If that's what you really believe, then you should have a bigger problem than I do with glass ceilings for White Women and Bamboo Ceilings for East Asian-Americans.
I mean hey, read this blog thread and the posts about standardized tests:
Pro Natura writes:
"If you are going to use tests of intellectual skill and/or achievement and select the best scorers, you are going to under-select African-Americans and over-select Southeast Asians (and Jews). Failing to openly acknowledge this only makes it more difficult to deal with the situation."
By your logic, 11-B, East Asian-Americans and Jewish American Women should be the DOMINANT groups in leadership positions throughout Corporate America and civil service.
Something tells me there's a little detour on the Road to Meritocracy, huh?
--Cobra
lol, all capitalized no less
But wouldn't that also be indicative of disparate gender impact as well? I would assume, with the myriad of "those darker groups are less intelligent" allusion-posts on this thread, that your statement would prompt a "men are more intelligent than women" round of posts.
Well, yes, I suppose it does.
My contention is that any test that does better than random in predicting performance is de facto valid, to the degree the test does better than random choice.
The officer qualifying tests are astonishingly predictive. The higher the score, the better the performance. Most training failures are nearest the cutoff point. The cutoff point was chosen because that is where the failure rate starts getting prohibitive.
The brute fact is that disproportionately few African Americans or women taking the test do well enough to clear the bar, and the test is valid because of its strong correlation to performance.
If the New Haven test isn't predictive (keeping in mind that the motivation to study for the thing in the first place is, itself, predictive of success), then it, along with the other criteria, need changing until they are predictive.
On the other hand, if, like the officer qualifying tests, the score is predictive of future success, then, absent naked racism, how do you justify picking those who did less well over those who did better?
As Scalia says:
"Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes."
And yet, as Ginsburg admits in her dissent:
"The Equal Protection Clause, this Court has held**, prohibits only intentional discrimination; it does not have a disparate-impact component."
** Note: by "this court", Ginsburg doesn't mean the current court. She is pointing to precedents from the 1970s.
Many people think that the Civil Rights Act of 1964 was based on the 14th amendment, but it wasn't. It was based on the Commerce Clause, because in a number of cases the SCOTUS had ruled that Congress had limited authority to apply A14 to private businesses.
But, since A14 was enacted after the Commerce Clause, it stands to reason that Congress can't implement Commerce Clause-based legislation that violates the 14th amendment.
And if A14 doesn't have a "disparate impact" component, then Congress's efforts to enforce a disparate impact standard, would seemingly be invalid from an A14 point of view, because of the "thumb on the scales" described by Scalia.
I think one thing is clear: The majority today tried to finesse the issue raised by Scalia, refusing to gut the "disparate impact" clause but instead arguing that New Haven went too far in trying to implement it (throwing out the exam was a step beyond what Congress intended). Scalia himself endorsed this, saying the particular case didn't "require" addressing his issue head-on. Ginsburg argues otherwise, and IMO she has the better argument.
My bottom line is this: if the 1991 CRA concept of "disparate impact" is legitimate constitutionally, then the dissenters got this case right and the majority was wrong. The only path to finding against the City was to invalidate Congress's definition of disparate impact.
Not liking the results isn't good enough. If the city of New Haven wants to revise the rules for the next round of promotions that is fine, and long as they publish the rules and then adhere to them in advance.
If you grant (which I don't necessarily) that corporate america should be run by government-administered tests rather than private citizens, and that both the groups you mentioned apply for civil service at the same rates, then yes, that is precisely what I mean. In a perfect single-employer meritocracy being administrated right at this moment.....yes, jews and asians would be disproportionately represented at the top. You can blame it on whatever you like, but I'm more interested in results than excuses.
Obviously there are some differences. There would be among any groups, no matter how defined, other than by aptitude itself. The question is a matter of degree and kind. We hope that the differences are not great enough to make proportionate impact unattainable, but they may be, and if so we need to determine that and adjust our societal goals and legislation to the reality.
We need genetic engineering as soon as we can get it. We need to increase the aptitudes and characters of future generations, regardless of ethnic heritage, so that disparities of innate aptitude no longer limit human prospects.
But, to prevent cheating, the actual test was kept secret from everyone in the New Haven FD, including the chief and assistant, according to the respondents' brief:
“Standard practice” would have required review of
the written tests by New Haven fire experts to ensure,
among other things, that the content reflected an accurate
understanding of New Haven rules and practices.
Pet. App. 635a. The City had decided, however, in order
to safeguard the integrity of the testing process
(there had been allegations of cheating on past exams
(Pet. App. 601a)), that no one from New Haven would
review the tests prior to administration. Pet. App.
508a-509a, 635a-636a. IOS did not provide for review
by other experts, save for a single battalion chief from
the Atlanta area. Pet. App. 509a.
So no one on the NHFD knew ahead of time what questions were on the exam. Nor did they know what answers were the credited responses. Being surprised about the results from such an exam was entirely possible.
Do the instructors know the students' test scores? The Pygmalion effect is common, (note that race was not an issue in that experiment), and most powerful in the negative -- when some one is not expected to perform well, they don't.
My understanding is that the NH chief and assistant examined the test after it was administered and believed it to be both fair and relevant. Also, according to the Ricci majority, the testing company offered to rescore with two challenged questions counted as passed regardless of actual answer but that it wouldn't have mattered to the result.
No, only that they did well enough to make it through the front door.
Very much the same as no one knows how a student did on the GRE, other than that it must have been at least good enough.
What's more, students have no idea how predictive test scores are. I myself didn't know until the commanders' conference I attended.
former firefighter here... (then i got a real job).
it comes down to this. oral exams are SUBJECTIVE.
written exams (that aren't essay answer etc. iow they are multiple choice, etc.) are NOT.
of course you can get a better result with oral exams, because (consciously or not) you can score certain people higher or lower based on race and then justify it and how can you argue? it's subjective.
you can have 6 different interviewers all have different assessments of how somebody did on an oral exam.
that's not the case with a scantron test. hanging chads excepted. oh wait. scantron uses #2 pencil. maybe #2 pencils are racially BIASED.
let's remember, not to long ago, some fire departments actually made the PHYSICAL TESTS for firefighter entry easier in order to get more female firefighters.
i also suggest we need to rewrite the criminal law.
after all, over 10 times as many men are arrested for bank robbery as women. clearly, such a disparate impact means the law is gender biased.
all this quibbling about HOW closely related the written test is to the actual firefighting job is also a little silly. classic "perfect is the enemy of the good" argument. there is no way to design any written test for firefighter or practically any career that is going to be some kind of perfect predictor of future success. but at least they are objective and can be designed to test various areas of knowledge, judgment, etc. that are essential to being a good firefighter supervisor.
i once took a class with a bunch of firefighters for hazmat incident commander school. the test was BRUTAL. how one can devise a test about hazardous materials (or fires) to be racially biased is frankly beyond me.
What does this mean exactly?
the "truth" being admitted is as other commenters put earlier in the thread
If the "Problem" concerns the "innate intellectual skills" of a "racial group" how exactly does admitting that, "fix it?"
More to the point, if you accept that as truth, how is that even a problem that's capable of being fixed?
If the answer is "biological fact" any attempt to look into the roots of the problem is blocked by assertions that "It's because that race is dumber" any any concern over the results (societal imbalance) is countered by "why be concerned, it's just the result of that race being dumb."
It's probably true that the underlying assumption (or the "big lie" as another suspect commenter put it in an earlier post) of Affirmative Action supporters is that there is no "innate" reason that one racial group might under-preform another. That means they actively look for solutions to the problem of racial imbalance.
Quota based affirmative action is a very problematic solution, perhaps so much so that it ought to be abandoned. But I really do fail to see how going from that to positing that the difference results from "innate" ability differences within racial groups doesn't create exactly those same problems.
To put it concisely, there is no "genetic intellectual inferiority" but there is a culturally based denigration of knowledge that hinders certain minorities more than others. And no, that is not the government's fault or problem.
It's probably true that the underlying assumption (or the "big lie" as another suspect commenter put it in an earlier post) of Affirmative Action supporters is that there is no "innate" reason that one racial group might under-preform another. That means they actively look for solutions to the problem of racial imbalance.
Ben P. I don't follow. If the differences in question are biological in nature, then they can be attacked on a biological basis. Biological differences are not immutable.
On the other hand, if biology matters, and people trying find solutions to the problem of racial imbalance ignore biology, their solutions are unlikely to work.
1. The design of the test is flawed - i.e., there are cultural references or vocabulary or terminology included in the questions which favor one or more groups over the others.
2. The group samples are not truly representative, so sampling error explains some or all of the deviations - if you have a group of whites all drawn from the top 25% of their prep school class compete against samples of minority all drawn from the most incorrigible reform school rejects, any expectation that racial results will support your assumption of equality is certain to be dashed. The differences in sample makeup needn't be that pronounced to result in significant deviations from an expected racially or sexually proportional result. The smaller the group being tested, the higher the probability that sampling error contributes to the deviations.
3. There may be individual differences in test preparation, either as a result of cultural influences or as a result of individual preferences, which explain some part of the deviation.
4. Your initial assumption of group equality may simply be wrong - there may in fact be group differences in the aptitudes being tested that are biologically caused. On gender issues, there are significant studies showing differences between male and female strengths - because men were historically the hunters of the tribe, who not only had to track the game but then return to the village, men are, as a group, better than women at spatial orientation and sense of direction. If the test is designed to determine aptitude for navigation, that biological difference might explain most or even all of the deviation between the results for males and females.
There may well be other causes for statistical differences in test results which reflects a "disparate impact" on one or more groups. The biggest problem I have with "Disparate Impact" as a legal framework is that it presumes that the deviations are all caused by test flaws, pretty much puts explanation 4 off the table, and puts the onus on the test administrator to BOTH prove the validity of the test AND prove that no other equally valid test exists which would have a smaller disparate impact. I would require the Plaintiffs in a disparate impact claim to demonstrate the flaws in the test or testing procedure, and allow the Defendant a complete defense if he or she could show that all or a substantial part of any deviations from the expected "equality" results were caused by any non-discriminatory explanation, including sampling error (this is not the employer's fault where test takers are self-selecting, like job applicants), differences in test preparation, or differences in aptitude.
As a teacher, I dispute the innate part. If I didn't, I'd be out of a job.
"Look, no one (I hope) actually thinks that blacks or hispanics are genetically inferior intellectually."
Certainly that thought is taboo, although taken in the aggregate it could still be true, as could the thought that Whites on aggregate are genetically inferior intellectually to Asians. Nothing says that such a state of affairs could not change, or that aggregate racial categories are particularly helpful ones around which to construct policy.
I'd argue that they are not (for the same reasons that that thought is taboo) and that therefore we'd do well to get post-racial all around. It's not conservatives arguing otherwise.
As a black dude from parents who didn't finish high school who managed to eke out a PhD, I perhaps have some **sympathy** for this interpretation as some doors have a sturdy wedge of precedent to allow me in...at least until yesterday!
Cheers,
R
"As a black dude from parents who didn't finish high school who managed to eke out a PhD, I perhaps have some **sympathy** for this interpretation as some doors have a sturdy wedge of precedent to allow me in...at least until yesterday!"
Grats!
Let's assume this is always true. What then can we really say? While I am closer to an economist (I'll never agree to call myself one since modern economics is sort of like religion) than an anthropologist, what you are essentially stating is that at least one set of people from a very strong oral tradition do not do very well on written exams either in general or in the particular form of mathematics. I would be surprised at any other outcome and hope you'd be as well.
I love when my white friends (okay, okay, I have a lot of them including my wife) marvel at how black folks seem so fluent with body and mind and language and rhyme. A creative fluidity that flows equally from Brazil to Brooklyn. Yeah, we can get credit for THAT but it ain't intelligence because you can't drop it into a legal pad or check a box next to it. Sure, it's creative, inspiring and quite clever at times but it sure ain't intelligence! Intelligence is sitting down at a desk with a bunch of strangers and putting yourself through misery to brag about how big your number is.
Gould called it reification but that puts too big a hat on it. It's just saying I'm better than you because what I do is important and what you do is, well, not important.
Isn't it really that simple? I almost hope it isn't because a lot of intelligent people may not actually be.
Well, I guess you learned something from the posters on this thread, huh 11-B?
Again, this is nothing new. Believing that oppressed groups of people are inferior is a worldwide reality, and America is not immune to this notion. What I find most illuminating about the "IQ/Standardized test" proclaimations, is that those who champion them rarely breakdown the results INTRA-racially.
Hmmm.
Reginald writes:
I agree, R. It's the reason why hiring and promotion through legacies, nepotism, cronyism, fraternalism, patronage, interlocking directorates and old boys networks among the White Male Power Structure isn't looked upon by those in power with the same scrutiny or consternation as Affirmative Action. IMHO, homogeniety is comfort, familiarity is the status quo and Power ultimately seeks reflection and self-replication.
Selective Outrage is also the refuge of the WMPS. Obviously, the Ricci v. DiStefano case is connected to a SCOTUS nominee, but where was the hoopla over ST. MARY'S HONOR CTR. v. HICKS (black man), where the same Justice Kennedy, signed on to Scalia's odious majority opinion:
Like I said before, I'm not a lawyer, but geez...if this is how the system works, why are conservatives in such a rush to destroy Title VII? Apparently it's selectively applied based upon which side's lies are more believable.
—Cobra
"Well, I guess you learned something from the posters on this thread, huh 11-B?"
What might that be, Cobra? I claimed that the "belief in" genetic racial differences, as you term it, inaccurately, is taboo, and rightly so, given the ruinous results of conclusions drawn from that premise.
It does not therefore follow that the negation of that belief (it is of course an empirical claim, not a belief - the negation then being that no differences exist) should serve as a basis for policy - i.e. that one should expect all fair tests to produce distributions mirroring the racial distribution in the population taking the test - as policies constructed on false premises tend to lend credence to the opposite premise.
You know, the one we wanted to be taboo in the first place. Better to remain agnostic on the question, and therefore to construct race-neutral policies.
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