What’s the Rest of Ricci?

The many pages of majority, concurring and dissenting opinions in Ricci v. DeStefano leave one large question unanswered: Why did New Haven’s promotion exam for firemen, so meticulously constructed to avoid any smidgeon of cultural bias, produce results that skewed so heavily against black and Hispanic test takers? It’s obvious from its subsequent actions – throwing out the scores and denying promotions to the top finishers – that the city had no desire to keep minorities out of its officer ranks. It was no business of the Supreme Court to delve into why its attempt to get equal results bore so little fruit, but one can’t help speculating.

I’ll start by dismissing out of hand the racist theory that, just like white guys can’t jump, black guys can’t take tests. That was, as PowerLine notes, the position of one of New Haven’s expert witnesses:

[T]he city took testimony from a professor at Boston College whose area of “expertise” was “race and culture as they influence performance on tests and other assessment procedures.” Declining even to look at the City’s exam, she testified that no matter what test the City had administered it would have revealed a disparity between blacks and whites, as well as Hispanics and whites, particularly on a written test. In the 1960s, liberals would considered such a claim to “racist.” These days, some liberals liberal rely on it.

Nor is it plausible to argue that the test actually administered was somehow designed to give an advantage to whites. The Court’s description of the procedures followed in designing it shows clearly that the city strained to avoid any taint of bias. For example, two-thirds of the assessors of the oral portion (weighted at 40 percent of the total score) were minorities. It’s hard in any case to imagine how even the wiliest klansman could devise questions that prima facie related to firefighting skills but covertly identified skin color.

That leaves a couple of credible explanations. One is that the minority group members in the New Haven fire department’s lower ranks weren’t as capable as their white counterparts, another that the whites put significantly more effort into test preparation. If either is the case, the blame can be placed squarely on the contemporary practice of “affirmative action”.

The original idea behind affirmative action was to seek out qualified minority applicants who were being overlooked because of gaps in the information available to employers and unwillingness to look beyond traditional sources of recruitment. That idea is a good one, but it isn’t easy to implement. The lazy substitute is to hire an arbitrary number of members of fashionable “underrepresented” groups, without being too particular about qualifications, then stop. The upshot is a work force that includes not the best minority workers who could be found but the selection that happened to be available at first try.

Then, too, workers’ awareness that standards are less stringent for some than for others affects expectations. In New Haven, the white candidates for promotion knew that they would have to stretch themselves in order to have a chance at advancement. As the Court notes, “Many firefighters studied for months, at considerable personal and financial cost”. We aren’t told whether whites were overrepresented among that “many”, but it would have been rational for a Frank Ricci to throw his all into a test whose “results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered”. An equally able black fireman, on the other hand, might well have been lulled into complacency by the assumption that he was the assured beneficiary of affirmative action favoritism.

New Haven, to its credit, put firemen of all races on a level playing field. To its discredit, it didn’t make it clear to them in advance that the field really would be level, and then it reneged on fairness when the outcome wasn’t what it had hoped for. Being fair from the start, without interruption, would have been better for everyone.

Further reading: The Wall Street Journal, “Firefighter Justice”

Comments

[pbh]

"Protean stuff, this demographics!"

You mock, but demographics is the focus not only of both parties in their districting legislation, but also of our entire consumer culture. It is the science of crowd control, it is the discipline of advertising and it is how things work. You disdain it at your peril.

When a Community can present credible evidence that it is being disadvantaged by barriers to entry in the form of tests it has the obligation to object. The law has recognized this interest and the Appellate Court held in the Community's favor.

Only a radical, activist Court would find against the Community's lawful interest and hold the intent of the Congress unlawful.

pbh

[Paul Zrimsek]

Protean stuff, this demographics! Not only can it tell you what people believe, it can tell you what their test scores ought to be.

[pbh]

"Can the community's concerns be inferred quite so automatically from the community's demographics?"

In fact, the Community expressed itself directly to the point. When 90% of the possible promotions are available to members of only 40% of the demographic, the Community has the right to ask whether or not its interests are fairly represented.

"New Haven might be full of the sort of evolutionary throwbacks who are concerned mainly with whether their firemen can put out fires."

I submit that everyone who took the test was capable, else they would not have been eligible. The question was how to afford promotions without evidence of bias. In this regard, the test failed.

Only a Radical Activist Court could have found that the City of New Haven's reasonable concern that a Section VII violation be avoided could in itself be evidence of a Section VII violation.

pbh

[Paul Zrimsek]

Can the community's concerns be inferred quite so automatically from the community's demographics? For all we know, New Haven might be full of the sort of evolutionary throwbacks who are concerned mainly with whether their firemen can put out fires.

[pbh]

"I don't know how anyone could devise a test whereby individual minority candidates could be assured of doing as well as or better than the White test takers unless the qualifying exam is graded Pass/Fail and the available positions then filled by random draw from among the applicants who passed."

When over 60% of a Community is classified in national demographics as being in the "minority" and over 60% of the individuals taking the promotion exam in that Community are similarly classified as being in the national "majority", there can be questions of whether or not a promotion exam reflects the Community's overall interest when it delivers 90% of the available promotions to members of the national "majority" who are, in fact, less than 40% of the Community.

This is what most fair minded observers would call "disparate impact".

The fact that you do not know how to devise a test that more accurately reflects the community's concerns is not at issue.

The law required that any test producing the above result either be discarded or suffer challenge. A Radial Activist Court has read the law inside-out in order to negate its clear intent and the clear intent of the Congress that passed it.

pbh

[Bennett]

I think the reporting on this whole thing has been inaccurate because it leaves the impression that the only people who passed the exam were white. According to the opinion, 43 Whites, 19 Blacks and 15 Hispanics took the test for lieutenant. 25 Whites, 6 Blacks and 3 Hispanics passed. There were 8 openings and the top 10 qualifiers would be considered for those position. Those top 10 were all white. The next three vacancies would have been filled from a pool that included at least 3 Black candidates.

41 people took the captain's exam, 25 Whites, 8 Blacks and 8 Hispanics. 16 Whites, 3 Blacks and 3 Hispanics passed. There were 7 open positions and they would be filled from the top 9 qualifiers, 7 Whites and 2 Hispanics.

It wasn't enough just to pass the test. Several minority candidates did just that. But not only did the applicants have to pass the test, they also had to score at or near the top because there were only so many positions available. (In the real world, we call that competition.) I don't know how anyone could devise a test whereby individual minority candidates could be assured of doing as well as or better than the White test takers unless the qualifying exam is graded Pass/Fail and the available positions then filled by random draw from among the applicants who passed. Of course the problem with that is that even a random draw might result in only white candidates being selected. Would that be more fair? Would anyone have objected to the "luck of the draw"?

[pbh]

“It may remind some of us old enough to remember of the machinations and contrivances of Southern white officials and agitators employed to prevent blacks from registering and voting.”

Yes, it does, but not the way you imagine.

When the members of a community, which is a significant part of a larger community, ask that they be served, in part, by members of their own community, and when they object to paying taxes to support civil servants that are not of their community, to the exclusion of their own, which, even though less prosperous than the larger community, is nevertheless a significant part of the tax base for the community at large, is this not quintessentially American? And democratic?

Are those that demand that they benefit from hiring practices that are open to questions of bias demanding a fair field of play? Are they recognizing the justifiable concerns of the community at large? Are they not attempting to impose unfair results on the community that has requested representation from its own ranks?

What is the basis for labelling the normal, ordinary, and honorable political activity of supporting a community racist?

pbh

[pbh]

“New Haven, faced with threats from a gang of racist bullies, caved in.”

This is a gross, and disingenuous, oversimplification.

When the test results met with objections, indeed pressure, from groups that had been so discriminated against in the past that the tests were themselves an attempt to eliminate the potential for bias, the Certifying Board held hearings into the possibility that the tests had not met their essential function of being bias free. The conclusion as a result of the hearings was that the tests could not withstand scrutiny under the intent of Section VII.

The law required that the results of any test that exhibited bias should either be discarded or suffer contest. The City of New Haven did the only thing it could do and its decision was ratified by two courts of appeal.

Only a RADICAL ACTIVIST "Supreme" Court could have negated the clear intent of Congress and denied the clear letter of the law by rewriting it to mandate that concern for the removal of bias in hiring practices is by itself proof of bias.

pbh

[Tom Veal]

New Haven, faced with threats from a gang of racist bullies, caved in. That’s the ugly tale that Justice Alito recounted in his concurring opinion. Michael Barone has conveniently summarized the facts.

Mr. Hodges thinks that the city did the right thing. As Michael Barone says, that view is “typical of liberal elites who are ready to ratify squalid political deals – and blatant racial discrimination – in return for the political support” of hatemongers.

Such is governance these days in a liberal university town. It may remind some of us old enough to remember of the machinations and contrivances of Southern white officials and agitators employed to prevent blacks from registering and voting.

Courts that didn’t play along with those “machinations and contrivances” were accused of being “radicals”, too.

[pbh]

“If either is the case, the blame can be placed squarely on the contemporary practice of “affirmative action”.”

Actually, Title VII of the Civil Rights Act of 1964 requires employers to avoid “disparate impact” in the means used to evaluate employees. There is nothing in the Act that promotes advancing one group of individuals over another.

The proof of the Act’s lack of bias is the simple fact that if it did not require an even playing field, it would not have been possible for the majority to bend it back on itself.

As for the City of New Haven, it was certainly not inappropriate for it to invalidate the results of the test on the basis that it might face a Title VII challenge. As Alito makes plain, many members of the community had already threatened it and a review of the test by the certifying board led it to believe that it could not withstand such a challenge under precedent.

It required a radical, activist Court to overturn the intent of Congress and to undermine the reasonable desire of the City of New Haven to avoid allegations of bias.

And in doing so, this radical Court has attempted to dispose of "disparate impact" in an effort to create a foundation for bias.

Fortunately, the lessons learned prior to the filing of Ricci, in particular with the means of testing and evaluating employees, and more generally with regard to employment practices, have already rendered this decision an anachronism.

pbh