The Breakfast Table

Did I miss the point somewhere?

patron002 — Thu, 22 Oct 2009 01:30:20 GMT

Ok, I get that this "test" is supposedly racist because white people are better at taking it. However isn't it a little silly to assume its racist because the white people were more qualified in this case? I mean, when did it become racist to give a test, and pick the best qualified? Barring a situation where the minorities can't read and the whites can, what is the likelyhood that this was actually a racist test? I hate to pull the white card, I rarely do, but in this case I think it's valid... Would this have been an issue if 14 black people got promotions, two hispanic guys, and no whites? Nah, it wouldn't, and there would be no assumption that the test was "racist" because white people failed to pass it. I'm not sure how the test could be racist really, I mean what did it ask "Are you black?" if you answer yes you get the question wrong? Come on. I mean, first they tell you, that you can't have physical tests to become a fireman because thats unfair to women, now your arguing that you can't give a test to show knowledge and skills involved in firefighting, because the last person you'd want fighting a fire is someone that can pass a test. Now if it asked questions that were unrelated to firefighting then I suppose you would have a case. I'm confused about how you decide who is a quality firefighter when your not allowed to test their physical skills, or their mental skills... Really that leaves hiring and promotion based on race and gender alone, ironically to be politically correct you would have to be racist. I am sure that minorities could beat out whites, and women could beat out men on this test, it just didn't happen here. Perhaps the tests were scored incorrectly, but I honestly have a hard time believing that questions like, how do you carry a person out of a burning fire, or how do you roll up or un rolll a hose can be racially bias... Sorry call me skeptical.

Off the rails

tonydavisnelson — Tue, 30 Jun 2009 20:21:36 GMT

Once, just once, I would like one of these nitwits to start with the assumption that it was a fair test and go from there. This would seem a reasonable request given that THREE DECADES of legal battles put "fairness" squarely in New Haven's best interest.

This group is like a pilot that sees an abnormally high air-speed indication and instead of understanding the underlying reason decides to adjust speed as indicated--ultimately ending up in the Atlantic...

WHERE THE HELL IS THE TEST!!!!!!!!!!!!!!!!!!

DirtyBird — Tue, 30 Jun 2009 15:43:59 GMT

All the grousing and bitching and snickering is pointless, aimless and provides nothing of import without the test to review. Apparently it is hermetically sealed in a mayonnaise jar on the steps of Funk and Wagnalls?

What's the big secret here? Are they so ashamed of the test that it must be kep in hiding from the great unwashed (us)?

If anyone has a link to the test please, please share it.

Being denied promotion is an "adverse employment action"

Philidor — Wed, 01 Jul 2009 03:01:47 GMT

Mr. Dellinger argues that:

Given that no one had been promoted and no one had been denied promotion, it's very hard to see how the firefighters who brought suit were able to establish the very first element of a Title VII action: the existence of an "adverse employment action."

[End quote]

The people who took the test expected that the City of New Haven would do as promised: Award promotions based in part on the test. No, said the City of New Haven, we're concerned about how the test came out, and we're going to forget the test ever happened. So that we can find some legal way to a different result.

Mr. Dellinger further argues that the means the city selected to avoid giving promotions to those who had followed the city's rules successfully mattered in some way:

In addition to satisfying the statute, it would have been far better for the process to judge New Haven actions after promotion decisions were actually made using whatever new standards the city chose to adopt.

[End quote]

A Judge would be expected to rule that because the new procedures denied promotions to those who had earned them under the old procedures, and because those new procedures are unlikely to be successfully challenged legally, then the damage to those who had previously won promotion has disappeared.

The damage to an individual does not disappear because those who did the damage find a clever way to make the intended on-going harm less obvious subsequently.

ricci reversal doen't prove sotomayor is unqualified.

baltimore aureole — Mon, 29 Jun 2009 16:10:00 GMT

the reversal of sotomayor on ricci does NOT prove sotomayor is unqualified to sit on the US suprreme court.

rather, its the fact that sotomayor has been reversed 60% OF THE TIME that is troubling http://www.washingtontimes.com/news/2009/may/27/60-reversal-of-sotomayor-rulings-gives-fodder-to-f/

she could have had better results just by flipping a coin.

the state of race in our country....

patron002 — Tue, 30 Jun 2009 00:37:24 GMT

Complete and total nonsense. We have to go to court to figure out if its legal to discriminate against whites, because whites sometimes discriminate against blacks, because whites were better at a test, that might have been unfairly more difficult for blacks, eventhough it was probably based on things you need to know to do the job, but they might have disregarded the tests for a different reason, so it might be ok to be racist on a technicality, if you believe your being racist for a good cause. What a bunch of ridiculous jargon. If you fail to be promoted just blame it on some racial/gender/sexual preference/ethnic/disability, or the reverse of all of these, and the next thing you know everyone will be promoted. It could just be like the old days, and you got a promotion based on how long you worked at the place, regardless of actual skill, talent, or qualifications.

Tough case...

lumpster — Tue, 30 Jun 2009 17:13:16 GMT

Does the standard of "disparate impact" in Title VII apply to whites?

If yes, you get to join the Ginsburg club. Then you can start discussing what advice you would give to the City of New Haven: if you certify the test results, you get sued for "disparate impact" to minorities; if you don't certify, you get sued for "disparate impact" to whites.

If not, you get to join the Scalia club. Then you can start discussing how to reconcile "disparate impact" and the 14th Amendment's equal protection clause.

The legacy of hundreds of years of slavery and racism make defining "fairness" an extremely challenging endeavor. It also means one might have to embrace certain forms of unfairness to get to a society that's ultimately fair.

Gingsberg and minority vs. minority

OnGuard — Wed, 01 Jul 2009 18:30:46 GMT

Ruth Bader Ginsberg's writing that the New Haven firefighters had "no vested right to promotion" is true enough. But does that mean that the African-Americans who took the tested but did not earn promotions have a vested right to promotion? That is the only logical conclusion.

She and 3 other justices also overlook the fact that everyone knew the rules going in, but the results were thrown out when the outcome was not what it was supposed to be. In which case, why go through the charade of testing?

When we get into slicing people up into groups we have other problems emerge:

1) Two Hispanics tested high enough to earn the promotions, but they would have been adversely affected by discarding the test results. Are we essentially establishing a pecking order for minority groups where Hispanics rank below African-Americans?

2) Frank Ricci happens to be dyslexic (spelling?). He invested extra time and money to study to position himself to score high enough to earn a promotion. His efforts succeeded. He should be applauded. Are the handicapped also to be pitted against African-Americans and also placed on some pecking order? Are they above or below Hispanics?

The emphasis on identify politics and groups is bound to breed resentment, and rightfully so. I haven't even addressed the issue of reverse discrimination where whites are concerned.

I am Hispanic, but if no Hispanics had passed the test, and two African-Americans had, I would feel the same way. The only way we can get away from breeding resentments among groups is by providing equal opportunities to individuals, not by trying to provide equal results. We cannot support a system that pits not only minorities against whites but also minorities vs. minorities. (And as in the case of Ricci, who is white but handicapped, breaking it down simply by color or ethnic group makes even less sense).

This decision was inevitable, but...

lloyd667 — Tue, 30 Jun 2009 11:31:11 GMT

As I predicted, Ricci won. This is no surprise, of course, but it is interesting to ponder why.

The reason has little to do with the text of the law, or with the process New Haven actually used. Nor is it revealed, much, in the text of the decision itself. Rather, it is the climax of a decades-old conservative political campaign to define away racial (and, by extension, gender and so forth) discrimination. Or, at least, it is the climax so far. As Scalia noted, subsequent cases will surely provide the SCOTUS with opportunities to make even more sweeping changes to the law.

The central question is whether racial discrimination is a social problem any more. If the answer is yes, then it is legitimate to counterbalance it with legal instruments (such as disparate impact), to give blacks (in this case) a fair shake. If the answer is no, then such instruments amount to what conservatives have dubbed "reverse discrimination".

As a practical matter, and as Ricci clearly announces, this debate is now over. The 5 man SCOTUS majority has taken the view that a selection procedure can be fair even if, as in New Haven, it excludes all black candidates. And it ruled that the New Haven procedure was, in fact and in law, nondiscriminatory, despite the outcome. This ruling makes no sense if you think that racial discrimination is still a problem, and is manifest in such extreme outcomes. If, however, you think that the outcome reflected (mostly) the talents of the individuals involved, irrespective of race, then it makes perfect sense.

This logic also explains a couple of the puzzles raised by BT participants. Why did the SCOTUS decide the case, rather than refer it back? Well, if racial discrimination is not really a problem anymore, then everything turns on the selection procedure itself. Since SCOTUS had to rule on that, there is little left for a lower court to do. Why not wait until New Haven had actually promoted someone before taking up the case? Well, why wait? The procedure is judged fair (or not), and everything flows from that. There is, for example, no legal requirement that the procedure be the most fair, or least unbaised, imaginable. There is no need to compare this procedure with some other one that New Haven might adopt. Again, all this flows from the notion that the test excluded all the blacks because, well, they were inferior (as individuals) to the whites.

This logic also gives us a clue to the impact of Ricci. Those who think it is small are wrong. It is, in fact, almost impossible to judge if a procedure is racially neutral or not. This is why the doctrine of disparate impact was developed in the first place: you judge by the results. Consider the "good old days" of the South under Jim Crow. It was common to use tests to exclude blacks from voting. Literacy tests, for example, did not formally impose higher standards on blacks, but since it was known that blacks were less literate, such tests did the job. Surely, you say, such tests would not be used today! But they are used all the time. Consider the IQ test. Blacks score systematically worse than whites. Some (like Charles Murray of Bell Curve fame) conclude that this means blacks are intellectually inferior. Others conclude that the test picks up, in part, differences in education or culture and therefore say nothing about intellectual inferiority. SCOTUS has just ruled, in effect, that the former interpretation is correct, from a legal point of view.

It will not be long before a small industry will be drawing up and administering employment and promotion tests that will seem, at least to Justice Kennedy, "race neutral", but which will yield greatly disparate outcomes. To put it plainly, under the SCOTUS ruling (and others that will come in due course), those of ill will are going to use such tests to discriminate systematically and perfectly legally.

Welcome back, Jim Crow. And thanks, SCOTUS, for gutting, once again, the post-civil war constitutional amendments.

If Mr. Ricci had gotten his promotion

Sevumar — Mon, 29 Jun 2009 19:48:01 GMT

I'm not posting about the legal aspects of the case here, although I think the correct decision was made. I'm normally a liberal-leaning woman who has been made uncomfortable by some of the decisions coming out of the Roberts court. It's worth noting that if Mr. Ricci had gotten his promotion, he'd have instantly become a great human interest story and proof that people can overcome disadvantages. This guy should be a great story for liberals and conservatives alike, since he embodies many of the qualities Americans cherish. Unfortunately, his extraordinary story got caught up in, and silenced by, a much larger issue.

The city made it clear that the exam was the standard by which promotions were decided. When others might've sought special treatment for his disability (dyslexia), Mr. Ricci buckled down, made hard decisions, and underwent a tremendous preparatory effort. His preparations clearly helped him perform well on the exam and gave him a reasonable expectation of being considered for promotion. Of course, when the city threw out the exam for reasons beyond Mr. Ricci's control, it was a slap in the face. When you do everything right and still get treated unfairly, what else are you supposed to do?

"Ricci Shouldn't Have Happened This Way"

BlueEyesAustin — Tue, 30 Jun 2009 19:09:05 GMT

I love this final tagline on the story, by the way. The Breakfast Club's champion goes out of her way to deny Ricci and the plaintiffs their proper day and court and tries to hide the case like a cat shovelling litter over their feces. That's what the members of Slate's Breakfast Club universally want--law that systematically priviledges favored minority groups. It's all just so unfortunate when the designated sacrifices fight back.

evidence of multiple flaws

sigmond — Tue, 30 Jun 2009 10:25:48 GMT

What were the flaws?

Finally

mrliberal — Tue, 30 Jun 2009 15:01:26 GMT

common sense prevails! The minorities are all crying, affirmative action(notice the absence of capital letters) is on the way out. Happy day!

Ricci changed my mind about Sotomayor

here2help — Tue, 30 Jun 2009 07:23:58 GMT

I now very much hope that she is confirmed. It is obvious now that appointing this strident, self important, vaguely racist woman to the Supreme Court will permenantly drive Justice Kennedy back into the conservative fold. Replacing a justice who is innocuously liberal (Souter) with one who is obnoxiously liberal (Sotomayor) negates the ability of the left wing of the bench to influence the center. On one side will be jovial, gregarious Alito and Roberts, on the other will be Sotomayor, looking down the end of her "wise Latina" nose at the "white men."

MSM Editorials on Ricci

Ben017 — Tue, 30 Jun 2009 23:06:02 GMT

On Monday, the Ricci v. DeStefano was ruled in favor of the firefighters by a 5-4 decision. This represents the first high-profile affirmative action/race-based hiring case since the 2003 University of Michigan Law school ruling. The Ricci case pertains to the race/intelligence debate as HBD underpins the disparate racial testing scores. Unsurprisingly, this consistent facet of standardized testing has been altogether absent from public discourse concerning Ricci. Ironically, the unthinkable fact of racial intelligence differences could easily place these test results, and the subsequent controversy, into the proper context. Namely, these scores are nothing new.

Assuming not one MSM source would mention HBD, I decided to investigate what the MSM thought of the decision. First, I'll provide the appropriate explanation of the case, from Sailer:

However, it never seems to occur to Bazelon to look at the countless similar situations in which whites, on average, both out-test and out-perform blacks and Hispanics. For example, New Haven’s own Yale Law School makes intensive use of the Law School Admission Test (LSAT). It has a black-white gap comparable to the New Haven firefighter’s tests: the median black law school hopeful would score at only the 12th percentile among whites.

Now let's look at the other side. From the USA Today opinion section, which covers views from their editorial board and columnists:

The other message from the decision is that rigid tests are a lousy way to fill leadership positions in public safety departments. New Haven could also drop its test in favor of "assessment centers" to measure officer candidates. Rather than just test scores, this method relies on role playing, emergency scenarios, group discussions, written exercises and interviews to assess potential officers.

The war against objectivity soldiers on. From The Washington Post editorial:

a city board ultimately declined to certify the test, in part because of questions about whether it was irrevocably and discriminatorily flawed.

Fails to mention that a testing consultant deemed the test was fair and then offered another independent study of it that the city refused. Racial egalitarian assumption underlies this statement.

We had urged the justices to send the case back to the trial court to determine, once and for all, whether New Haven was right in concluding the test was discriminatory and unusable...But the justices acted too soon and assumed too much, and in the process unjustifiably chipped away at a law meant to protect against unfairness.

Clearly, these columnists think "unfairness" applies to the actual test. From The Boston Globe editorial:

And they are sure to fuel opposition to affirmative action, which is still sorely needed in a diverse society.

Well I think we know where this is headed.

the four dissenting justices have the better case. No one has a right to a promotion.

Of course not. But does passing an oral exam/interview and a test with relevance to on-job skills make a good case for promotion?

Minority applicants have trouble moving up in the department, when social networks and even the union representing firefighters seem stacked toward white applicants

But just blame it on whitey. OK I'll give them the benefit of the doubt here. Yet, the OBJECTIVE test was implemented to mitigate unfair department politics.

The city went so far as to pay $100,000 to a testing consultant to develop an exam free of racial bias. What’s strange is that the city failed to take simpler steps that might have yielded more minority officers. New Haven gives preference in hiring to city residents, most of whom are black or Hispanic, but not in promotion decisions.

Another expensive test yielding the same old results!? And of course they don't give preference to city residents. Being a captain and planning a urgent rescue is a little more important and takes a little more ability than sitting behind a desk filling out forms or taking phone calls. They use affirmative action for hiring and not promotion in order to put some of the NAMs in menial positions. Thereby, they avoid discrimination lawsuits, but do not diminish department effectiveness.

Finally, from the San Francisco Chronicle editorial:

The U.S. Supreme Court undermined a key part of federal civil-rights employment law on affirmative action Monday with its ruling in favor of white firefighters in Connecticut who claimed they were unfairly denied promotions because of their race.

Remember civil-rights only apply to NAMs, not WCMs.

In vigorous dissent, Justice Ruth Bader Ginsburg said there was "substantial evidence of multiple flaws in the tests" and the ruling would make it harder to challenge hidden biases in workplaces. Barriers to opportunity in this society, though sometimes subtle or unintentional, still exist.

"Multiple flaws" means white people score better than NAMs. That must mean every test is "flawed". "Barriers to opportunity" (always the kind you never notice): please see this.

Let me make clear that the black firefighters who did not achieve promotion are still to be commended for their bravery and public service. Criticism should be directed solely at the cowardly New Haven city administration and not the individuals their decision was intended to defend.

http://onestdv.blogspot.com/2009/06/msm-editorials-of-ricci_30.html

Pivotal Sentence in Ricci Ruling

degsme — Mon, 29 Jun 2009 17:29:30 GMT

I'm rather surprised at the SCOTUS decision although it very much validates Sotomayor's comments about Old White Men and injudicious rulings. The hinge point of this decision can be found in the the Syllybus in the holding's section (c)(i) (pp 3)

The problem for respondants is that such a prima-facia case - essentially a threshold showing of significant statistical disparity...and nothing more - is far from a strong basis in evidence that The City would have been liable under Title VII had it certified the test results. This is because the City would have been liable under disparate impact discrimination only if the exams at question were not job related and consistent with business necessity

Yet the Court offers no guidance on what WOULD BE "a strong basis in evidence". Clearly the opinion of Corporate Counsel and the testimony of an expert is not sufficient.

Furthermore if anyone ever wanted to see an activist court in action, the above is it. Because that is NEITHER what the law reads, nor what the Congressional Intent in passage was. This is essentially taking the letter of the law and adding another paragraph to the "burdern" in a disparate impact case without any legislative intent.

IOW its a ruling for which sets no guidelines for lower courts to follow. And that is a bad ruling. One that will necessarily be revisited at some point in the future. So Ricci is reversed. Which means New Haven will immediately face a Title VII suit and a motion to stay the promotions.

Which will be granted. But the lower court will have no guidance on what standard to use on behalf of the Disparate Impact plaintiffs.

Dumb dumb dumb ideological ruling

Ginsburg's dissent borders on racist garbage

Ben017 — Wed, 01 Jul 2009 05:40:11 GMT

Haha, an interesting response to this statement:

I agree with Ginsburg's logic. No one is entitled to a promotion. All firefighers were treated the same because none were promoted. Where's the discrimination?

That is indeed an accurate summary of Ginsburg's position, which is precisely why it's ludicrous. Suppose a private company promised -- in writing -- to promote someone to Public Relations Director based upon a written exam, and then after the test was done, it turns out a black guy had the highest score. Then the company bigwigs said "well... we really don't want a black guy as our public face... so we're going to rescind our agreement and invalidate the test." The company in question freely admits that, if the guy had been white, he would have gotten the PR position. Do you really think this wouldn't be a Title VII violation? Would "hey, we were so opposed to having a black guy in the position, that we decided not to promote anyone" been "non-discriminatory" under Ginsburg's tortured logic as well?

OF COURSE the city's actions were in clear violation of Title VII of the Civil Rights Act of 1964. Ginsburg's dissent borders on racist garbage. I read it twice and was disgusted both times. Shorter Ginsburg: "Fuck Title VII. Firefighting has a history of racial discrimination against blacks, so now it's the white guy's turn to suffer." It is a spectacularly offensive opinion that left me sick to my stomach.

http://www.halfsigma.com/2009/06/surprise-liberals-disagree-with-ginsburg.html

What time do the riots begin?

Scoot'r-d — Mon, 29 Jun 2009 16:29:55 GMT

Historically judicial rulings contrary to the desires of black radicals seem to initiate displays of violent public outrage. What time does the rioting begin?

The 5 to 4 decision, and the reality.....

PatIowa — Wed, 01 Jul 2009 00:32:09 GMT

the Georgtown University Constitutional professor:

http://www.msnbc.msn.com/id/3036677/#31638660

Walter, how arrogant are you and your law prof friend?

NotAsArrogant — Tue, 30 Jun 2009 05:13:11 GMT

Walter, I think of myself as a liberal, progressive, Jewish guy. Really, I do.

And I cringe when I hear it said how much the left holds everyone in contempt. But seriously, you think your law professor friend could study up a bit and ace the multiple choice exam that firefighters on the job for years use to determine promotions.

Here is what a female reporter who interviewed the Hispanics who took the test wrote:

http://newhavenindependent.org/archives/2009/02/firefighter_sto.php

"Cordova agreed. 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."

First, you are being arrogant. Second, considering what happened to the African American firefighters who have worked as firefighters when they took the exam, you and she are being racist.

Yes, you lawyers are like gods to us mere mortals. Is there nothing you can't do? Why just say you can pass that exam and Walter, you right that down as evidence the tests mean nothing.

But here's the kicker. Consider the process by which that test was designed. A company specializing in creating tests to promote firemen rode around for weeks with firefighters and worked very hard to figure out what was important and what was not. Not only are you claiming arrogantly that a lawyer could ace it without working up a sweat and having no actual on the job knowledge of the physics or chemistry or actions of fire, you are actually stating that the end result of all this Title VII bullshit is a dumbing down of the test that renders it useless.

Posts like yours really make me hate being a liberal.

Unpicking Ginsburg's Pernicious Views

Ben017 — Tue, 30 Jun 2009 21:14:50 GMT

Ginsburg's dissent in Ricci v. DeStefano Instead of rejoicing over the outcome of the Ricci case, the fact that four justices signed on to GInsubrg’s dissenting opinion fills me with both anger at liberals and dread that the liberal viewpoint will eventually triumph over reason and sensibility. Ginsburg writes, “The Court’s order and opinion, I anticipate, will not have staying power.” I translate this as meaning that Obama is going to be president for another seven and a half years, so the liberals are only one heart attack away from reversing Ricci and imposing their will. It’s an unusually unsportsmanlike statement and demonstrates a disrespect for stare decisis that’s unbecoming of a Supreme Court justice. When something like that shows up in a dissent, it indicates that the decision created a great deal of ill will.

As I explained in my previous two posts analyzing the Ricci decision, the statutes passed by Congress are racially neutral and state that it’s unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 USC §2000e–2(a)(1). It doesn’t say that it’s only unlawful to discriminate against minority races. The Supreme Court has continuously paid at least lip service to the concept of race neutrality, and theoretically there are only a few limited circumstances in which it’s legal to discriminate against whites in order to favor minority races. One such circumstance is in education where the need for “diversity” is such a compelling interest that it allows colleges to consider race as a factor in admissions See Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

It seems clear to me that Ginsburg doesn’t agree with the idea of race neutrality. She believes that it’s always desirable to discriminate against whites, and presumably Asians as well, in order to benefit blacks and presumably Hispanics. But she dare not say this directly in her opinion, because such a direct statement of what the left really wants is unpopular with the majority of Americans, and it would also make her dissent irrelevant because it would be such an obvious misstatement of the current law, a misstatement of both the text of the statutes and judicial opinions interpreting the statutes. Her actual dissent is a lot more pernicious, because it undermines the holding of the majority by repeating and thus bolstering the standard liberal half-truths and lies.

If you don’t believe my view of Ginsburg’s true motives, then try to imagine how she might have decided this case if the facts were the same except the races were reversed. After the city gave the test, too many blacks did well on the test, and white groups in the city complained that too many blacks were being promoted, and then the city threw out the results under the pretext of disparate impact. Does anyone seriously think that Ginsburg would agree with the city? Hell no! It would be an obvious case of discrimination against blacks!

At the beginning of her dissent, Ginsburg mentions that the city is nearly 60% “African-American” and Hispanic. She thinks this bolsters the view that the fire department needs more black and Hispanic firefighters in command position. This is only because she judges fairness by outcomes. From my perspective, the fact that non-Hispanic whites are a minority in the city of New Haven makes it more likely that the city refused to certify the test results for the worst possible reason; to discriminate against a minority (non-Hispanic whites) in order to benefit the majority.

Ginsburg complains about the historic “failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often relied on criteria unrelated to job performance, including nepotism or political patronage.” Dissent at p.3. It’s ironic that she mentions this, because it’s exactly for these reasons that civil service hiring and promotions are so often test based. An objectively graded test doesn’t care if the test taker donated money to the campaigns of the currently elected politicians, or paid kickbacks to get the job, or is a relative of a powerful person within the civil service. Ginsburg should be praising the fairness of an employment practice which promotes white Republicans in a city run by black and Hispanic Democrats.

Ginsburg devotes several pages of her dissent to describing the process by which the exam company created and administered the exam. The actual questions contained in the exam aren’t available to me, and I’m not an expert in firefighting so even if I could read the exam questions I wouldn’t fully be able to evaluate their relevance to the job. Given my experience with companies which sell services to government, I will concede the likelihood that Industrial/Organizational Solutions, Inc was more interested in making as much money as possible rather than creating the best possible exam. But I don’t see where the law requires employers to use the best possible exam or the best possible employment practice, because perfection is an unattainable goal. Mediocrity is the inevitable norm in most large organizations. The question should be whether the exam was adequate for its intended purpose, despite its flaws. The purpose was to create a merit-based means to award promotions, free from corruption. The majority cited testimony “that the test questions were based on the Department’s own rules and procedures and on ‘nationally recognized’ materials that represented the ‘accepted standard[s]’ for firefighting.” Majority opinion at p.7.

Ginsburg would pick at every possible flaw she could find in the exam, and then rule that these flaws caused disparate impact against minorities, without any evidence at all that minority test takers did worse on the flawed questions relative to white test takers than they did on the good questions.

Ginsburg criticizes the very notion of written tests:

Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432.

We know that the real reason she dislikes written tests is because blacks perform poorly on them, but because she refuses to admit the real reason she dislikes them, she doesn’t need to explain why she thinks blacks perform poorly. I strongly disagree with the notion that written tests are a bad way to select fire officers. At an actual fire, the officer’s job is to direct the activities of the lower-ranked firefighters. Therefore, the officers must know a lot about firefighting practices so they can best direct the firefighters towards tasks which will minimize property damage and preserve human life. I would also say that intelligence is important for a fire officer, because the smarter officer would make smarter decisions during a fire. If black firefighters are unable to correctly answer test questions about the best way to fight fires, then they shouldn’t be promoted. It seems to me that a firefighting officer is not the sort of managerial job in which the manager can just rely on the expertise of his underlings, but hey, I’m open to hearing from people who actually work as firefighters who might disagree with my assessment.

Ginsburg admires other municipalities which don’t use written tests:

[M]ost municipal employers do not evaluate their fire- officer candidates as New Haven does. Although comprehensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assessment centers (“simulations of the real world of work”) as part of their promotion processes. P. Lowry, A Survey of the Assessment Center Process in the Public Sector, 25 Public Personnel Management 307, 315 (1996). That figure represented a marked increase over the previous decade, see ibid., so the percentage today may well be even higher. Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam. Id., at 309.

Despite the existence of “experts” willing to testify that these alternative selection methods are better, it’s not at all clear to me whether the real reason for using these other selection methods is to select the best possible officers, or merely to promote more minority firefighters. I find it very suspicious that the “best” selection method, according to Ginsburg, happens to be the method which promotes the most minorities.

If one believes Arthur Jensen, that the average black has a lower g compared to the average white, then these assessment centers are able to rank black candidates higher by either using less g-loaded selection methods, or by surreptitiously boosting scores of minority candidates in violation of 42 USC § 2000e–2(l) which prohibits race-based score adjustments. Assessment centers have an obvious financial motivation to violate § 2000e–2(l), because the reason municipalities use the centers is to obtain racially “correct” results. Given that assessment centers have a strong financial motivation to cheat with respect to § 2000e–2(l), and that their clients, the municipalities, have no motivation to call them out on the cheating, I would suspect that cheating is taking place.

Appellate judges, who are not experts in statistics, test bias, or industrial psychology, should not be in the business of making the sort of determinations which Ginsburg would like to make. Ginsburg is so obviously biased in favor of preferring the selection method that promotes the most blacks, one cannot trust her assertions that her favored method selects better fire officers.

The majority wrote about the inherent conflict between disparate treatment and disparate impact. At the beginning of Section II-B of her dissent, at p.18, Ginsburg writes:

Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions. Cf. ante, at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800 (1973).

Ginsburg can only write this because she believes, or pretends to believe, that disparate impact is always caused by racism. Ginsburg cannot comprehend, or pretends not to comprehend, the possibility that in many cases, black candidates are, on average, less able at performing the jobs in question.

In contrast, the majority allows the possibility that the black firefighters in New Haven lack the same ability as the high-scoring white firefighters to learn about fires and firefighting best practices, and to apply that knowledge to fire situations Unfortunately, so long as liberals insist on wrongly believing that disparate impact is always caused by racism, and that black job candidates are, on average, always as able as the white candidates, the matter will not be settled. If liberal Democrats continue to hold the office of President until one of the five majority justices retires, then Ginsburg’s ominous prediction of the decision “not having staying power” will come true.

http://www.halfsigma.com/2009/06/ginsburgs-dissent-in-ricci-v-destefano.html

New Haven-the descrimination is built in

TripleJ — Mon, 29 Jun 2009 16:39:38 GMT

I used to live there and I see a difficult problem. The City is one of the poorest in the Country. The poor in the city are majority Black. they go to schools that are for the most part crap. The city population is about 50/50. The fire department and cops are 90% white. The higher-ups in the departments are 99% white. There has been a history of using tests to keep the departments white. Assuming that the tests will be non-descriminatory going forward, how do we fix/remedy this situation? We know if we use SAT type scores/tests the poor blacks will never stand a chance against the whites who go to better schools in the surrounding towns.

The death of disperate impact?

bill sullivan — Mon, 29 Jun 2009 16:19:50 GMT

One can only hope. What a great day!

Can someone please explain to me

defen — Tue, 30 Jun 2009 00:36:46 GMT

Why it matters what color the captains and lieutenants are?

Emily Bazelon says:

"In the short-term, though, New Haven's fire department will soon have 15 new lieutenants and captains, it seems. And in a city that is about two-thirds black and Hispanic, 13 of the 15 will be white, perhaps two Hispanic, and none African-American...[snip]"

It's impossible to miss the tone of lamentation in that quote, but if we're race-blind, why does it matter what color the lieutenants and captains are? If all the firefighters in a majority-white community were black, would anyone give credence to residents' complaints about it? I think the people would be pilloried for their racism, but maybe I'm wrong.

Cons have lost next legislative elections with this...

candoxx — Tue, 30 Jun 2009 12:44:31 GMT

and if they also mess up Sotomayor's confirmation, they will lose massively I bet you.

Everyone who is not a white male or a right wing zealot in this nation knows that ALL the tests are skewed culturally favoring white men...all those baseball questions alone are sanskrit to someone from China for example. Telling municipalities that they cannot change the freaking tests is a MASSIVE insult to immigrants and people outside the cultural mainstream TRYING to get themselves into it!

That is what is so awful about Con politics...it is aimed at people who seek to get into the American cultural mainstream, but are not yet quite materially there! As such, it is particularly painful to those individuals who have to endure it. STUPID cons strike again!

I suspect that the Cons have broken the back of every honest African American who wishes to support them as well...there is MASSIVE cultural discrimination against African Americans in the work place by OTHER WORKERS and institutionally, and I have yet to meet anyone African American who does not know it who is past age 12.