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?

While I agree with your first paragraph, I have to tell you that you should rethink your belief that this opinion was right.

"The city made it clear that the exam was the standard by which promotions were decided." So, the city created a (allegedly) racially discriminatory test, but because they announced it ahead of time, that's ok? If you boss told you the next promotion would go to the woman in the office who dressed the sexiest over the next month, would you be ok with that? Those are the same principles, with only a slight difference that your boss would be discriminating intentionally, whereas New Haven was not. But the effect on the employees is the same.

"When others might've sought special treatment for his disability (dyslexia)" By special treatment, do you mean a test that is more fair? I have to say, this test was probably more discriminatory toward Mr. Ricci than to black firemen, but that doesn't really change the law, or whether the test discriminated against the black firemen.

"When you do everything right and still get treated unfairly, what else are you supposed to do?" I wouldn't call Mr. Ricci's treatment unfair. He was treated poorly, very poorly, but the city threw out his test results because it was trying to be fair to everyone. The city's mistake was giving an unfair test. But you can't really say it is then unfair for the city to throw out the unfair test. Harsh, but not unfair.

I think the difference between supporters and detractors of this case is that supporters look at the case and see one sympathetic party. Detractors see two sympathetic parties, and settled law that clearly favors the city (or at least it did).

You're parading around this "unfair test" assertion like it's fact. The city spent 100k to create a fair test and negotiated with the union to set the criteria for advancement.

What actual facts do you have that this is not a fair test? Some "expert" brought in after the fact by New Haven as a CYA? Seriously? How about we defer to the team of experts brought in to create it in the first place?

Since your entire post above was predicated on your "unfair test" assertion, if follows that the rest of it would be equally valid/invalid.

rthorat:

While I agree with your first paragraph, I have to tell you that you should rethink your belief that this opinion was right.

"The city made it clear that the exam was the standard by which promotions were decided." So, the city created a (allegedly) racially discriminatory test, but because they announced it ahead of time, that's ok? If you boss told you the next promotion would go to the woman in the office who dressed the sexiest over the next month, would you be ok with that? Those are the same principles, with only a slight difference that your boss would be discriminating intentionally, whereas New Haven was not. But the effect on the employees is the same.

No one has ever examined the test to determine if it violated Title VII. How would dressing sexiest be job related? Also your example would violate Title VII as only women would be elligable for promotion.

"Since your entire post above was predicated on your "unfair test" assertion, if follows that the rest of it would be equally valid/invalid."

No! I'm pretty sure I said "allegedly" unfair. The city, after further analysis, thought it was unfair. You don't agree with that, which is the basis for your support of this opinion. However, there is no law that says the city is required to keep a test they deem unfair. The Court invented a new rule today. Do you really think Congress intended all these hurdles to Title VII enforcement when they passed Title VII? Do you think Congress intended that New Haven, a town with a history of severe discrimination, would have to jump through hoops, cross every T, and dot every I, just to comply with Title VII? No one can reasonably claim that today's opinion is anything but judicial lawmaking, given the history of Title VII and New Haven. It's just not plausible.

"How about we defer to the team of experts brought in to create it in the first place?" Creating a fair test and judging whether an already created test is fair are two separate things. Creating a fair test is hard. Just because some "experts" in that field failed to do so does not mean another expert is wrong in his judgment that the test was unfair (in fact he is much more likely to be right given that writing a fair test is much harder than judging one). The expert judging the test could be wrong, too. But it should be irrelevant. The city should be allowed to rely on the expert's judgment.

"Also your example would violate Title VII as only women would be elligable for promotion." That's the point! I just wanted to point out that under the first poster's logic, an obviously sexist exam would be ok, so long as everyone was told about it ahead of time and given a "fair" chance. And who said only women could pass that test?

"How would dressing sexiest be job related?" Neither were many of the questions on the New Haven test, according to the court record. This is the point, and the reason why racially discriminatory tests are unacceptable - because the promotions are not given based on job-related criteria if they are producing discriminatory results - they are instead based on racial criteria. This is what makes it wrong.

Oops! I guess I said the woman in the office. Well, let me change that to "If you boss said the person in the office who dressed sexiest would get the next promotion..."

"So, the city created a (allegedly) racially discriminatory test, but because they announced it ahead of time, that's ok?"

What are you implying, the city knowingly gave a biased test?

The simple fact is the city contracted to have the teat produced, the contractor supplied the test. Even the failure rate was within the legal limits covered by title VII. When asked the competitor of the company said they could have done a better job but that the percentages passed the legal test.

Even after all of this they still threw out the test. Frankly it is my perspective that they applied the tests with an expected outcome and failed to acheive it, based on that failure they threw out the tests. This one seems like a no brainer, if title VII requires that race not be an issue in the testing then the city having a biased race based expectaiton of the outcome of testing is the issue.

"What are you implying, the city knowingly gave a biased test?"

Not at all. In fact, I think the city tried to make the test fair. My analysis does not at all rely on the city's intentions. They believed the test was unfair, and that is all that matters. Your analysis requires that you believe the city intentionally discriminated against the white firefighters. This is very hard to believe given the reality of New Haven. But aside from that, you have nothing to prove that but your assertions, whereas the city has provided ample reasoning for their decision. You may not think that it is enough evidence, but it surely is enough evidence to show they were not intentionally discriminating against the white firemen. I don't know why so many people find this hard to understand. This case was really simple. The Court changed the law today. That is fine, but why do so many people keep arguing that this was the right decision all along? It clearly was not, given the facts and the previous law on the issue...

I'm generally amused by the defense mounted for actions that would be decried had they gone the other way. I'm troubled, however, by the foundation of their argument--that the correct outcome is be predetermined and anything that varies is necessarily unfair.

Fortunately we're likely to get this all sorted when the court (belatedly) determines disperate impact to be contrary to equal protection.

I guess the bottom line for you is that you believe that laws attempting to enforce equal treatment are themselves unequal treatment. It's quite a bizarre argument, but that is what the "disparate impact as equal protection violation" is arguing. Disparate impact laws exist as a recognition that, though outward discrimination is no longer present in many areas, more subtle forms of discrimination are still present. You can see these forms of discrimination most readily in statistics that show the continued exclusion of many groups from equal treatment. When the government attempts to rectify this invidious discrimination, that is discrimination by the government. So, essentially the argument becomes that though we have laws guaranteeing equal protection, the government is powerless to enforce it, so long as the discriminators are clever enough to not outwardly discriminate. Nice world.

rthorat: The problem with your analysis is contained in your own post. First you say, "I think the city tried to make the test fair." Then, you say, "They [the city] believed the test was unfair, and that is all that matters." In other words, before the firefighters sat down to take the test, New Haven was satisfied that the test was in all respects fair. They only believed it was unfair after the test results came in and those results were not what they wanted. They couldn't look back and point to any particular part of the test to say, ah, THAT question is racist. Their only evidence was their disappointment that African-American test-takers did not fare as well as expected, which means that the city was effectively throwing out a perfectly good test based solely on results.

The Court's holding is quite clear: just because a test's results don't break down perfectly is not enough evidence that the test itself was in violation of the law. Had there been evidence of the unfairness of the test itself, there would have been the "strong evidence" the Court was looking for.

title VII states that employment can not be race based, correct? Yet the city of New Haven voided the tests based on not enough black candidates qualifying, correct?

"City officials justified their invalidation of the hiring exam by noting that the test results – if certified and used – would impose a disparate impact on black job applicants. None would be eligible for the open jobs." CSM

How is this not a race biased descion?

There are no contradictions in my analysis, but there are negative (and very poor) assumptions in yours.

"They only believed it was unfair after the test results came in and those results were not what they wanted."

You assume that New Haven somehow "wanted" the test results to come out a certain way. What they wanted was a fair test (you have no evidence for your assertions about their motive). They tried to give one, and they believed they had done so (though I must say not a lot of effort was put into the test before it was given, not nearly as much as should have been to avoid this whole mess). When the results came back, a statistical analysis indicated there may be problems with the test. They did not immediately invalidate the test because it did not fit their pre-determined goals. They held 5 public hearings where people could comment on the test and they took testimony from experts who gave them strong evidence the test was unfair. You ignore all this in your analysis, which leads me to believe you have a pre-determined outcome you are sticking to.

"The Court's holding is quite clear: just because a test's results don't break down perfectly is not enough evidence that the test itself was in violation of the law."

This is one of the main problems with the Court's holding: it mischaracterizes the facts in the case. The Court asserts that New Haven threw out the results based only on the fact that the results did not have a perfect break down, when in fact, New Haven gathered much more evidence and made an informed decision. The Court then moves to say that they didn't gather enough evidence. It's clear that no matter how much evidence they gathered, it would not have been enough for this Court. If they had gathered all the evidence in the world, they just would have cried Equal Protection. You can call it what you want, but logical and fair are not terms I would apply. Political, definitely. Read the dissent - the facts are in there, though they are curiously absent form the majority opinion, at least the facts that cut against the majority.

"How is this not a race biased descion?"

Because what the city did was based on avoiding racial bias. They determined that their test had a racial bias in it, so they threw it out. Throwing out racially biased test results cannot itself be a racially biased decision. Otherwise no matter what the city did it was racially biased. This can't be. What the city did was influenced by race, but there was no bias against the white firefighters. They sought to eliminate the bias against the black firefighters. Unless, of course, you do not believe the city's stated motives, but there is no evidence to the contrary. Title VII was setup to create a strong incentive to avoid situations with potential racial bias. The Court turns that incentive on its head today. Now, there is an extra burden on the city. So, the new default is to favor racial bias, and only remove it when you actually lose a lawsuit. In other words, the Court has told minorities they must fight for their own rights again - the government will have none of it. They pretty much eviscerated the disparate impact clause of Title VII through rhetorical sleight of hand.

rthorat:

There are no contradictions in my analysis, but there are negative (and very poor) assumptions in yours.

"They only believed it was unfair after the test results came in and those results were not what they wanted."

You assume that New Haven somehow "wanted" the test results to come out a certain way. What they wanted was a fair test (you have no evidence for your assertions about their motive). They tried to give one, and they believed they had done so (though I must say not a lot of effort was put into the test before it was given, not nearly as much as should have been to avoid this whole mess). When the results came back, a statistical analysis indicated there may be problems with the test. They did not immediately invalidate the test because it did not fit their pre-determined goals. They held 5 public hearings where people could comment on the test and they took testimony from experts who gave them strong evidence the test was unfair. You ignore all this in your analysis, which leads me to believe you have a pre-determined outcome you are sticking to.

"The Court's holding is quite clear: just because a test's results don't break down perfectly is not enough evidence that the test itself was in violation of the law."

This is one of the main problems with the Court's holding: it mischaracterizes the facts in the case. The Court asserts that New Haven threw out the results based only on the fact that the results did not have a perfect break down, when in fact, New Haven gathered much more evidence and made an informed decision. The Court then moves to say that they didn't gather enough evidence. It's clear that no matter how much evidence they gathered, it would not have been enough for this Court. If they had gathered all the evidence in the world, they just would have cried Equal Protection. You can call it what you want, but logical and fair are not terms I would apply. Political, definitely. Read the dissent - the facts are in there, though they are curiously absent form the majority opinion, at least the facts that cut against the majority.

See, people cared about your opinion BEFORE the Supreme Court ruled. Now we have The Answer: the test wasn't racist. Move on.