Judgment Day: The Ricci Decision

Yes, no, and sort of

Yes, no, and sort of.

The test result alone was enough to signal a prima facie Title VII complaint. That's how it works, and is out of NHCSB's hands; Title VII looks kindly upon employers who take initiative in such situations, and harshly on those who have to be cornered. One of the central themes of Title VII and Griggs is that a test bringing such a disparate result can be considered fair, but one of the criteria for that argument is that the test must be germane to the employment situation it addresses. For instance, if it measured supervisory ability, had no problems with irrelevant questions, and could be shown otherwise free of discriminatory issues, a court would find the test and outcome fair.

Add to that the weight of test section results. While not exactly arbitrary—a 60-40% split between written and oral results is a fairly common weight distribution—the CSB felt it would have a hard time defending that under Title VII, as there were, apparently, other weight schemes that would have resulted in less outcome disparity. The law forbids employers from adjusting test evaluation criteria after the fact.

The CSB might have erred in not recognizing these issues until after the fact, but that is a separate question. The situation they had before them was the one they had to work with.

But there is yet a third aspect: unequal access. There is a factual aspect and a principled aspect to this:

At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and "wait a month and a half for some of the books because they were on back-order." Id., at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were "first-generation firefighters" without such support networks.

(Ginsburg)​

The factual assertion regarding who had what study materials when is interesting, and suggests some were told earlier than others what to study. This is an unfair advantage even if we strip race from the equation. Others had to wait what might be considered an inordinate period, and thus were six weeks behind from the moment they started studying.

As a consideration of principle, though, part of what the Civil Rights Act hoped to quell was an inherent disparity described by Justice Ginsburg's reference to family support networks. One of the problems with the merit argument put forward by some conservatives is that it would extend and possibly even reinforce disparities coinciding with racial and ethnic lines over the course of two or three generations. Some would assert that is exactly what the conservatives want. Presuming, however, a much more innocent intent—e.g., that a given conservative has not considered or fails to comprehend such impacts—we still encounter a problem. The conservative might say to the black applicant, "It's not the white applicants' fault that you don't have a family network to draw advice, materials, and other assistance from." But we are still at a point in our history when that lack is the specific result of social inequity. And that is part of what the CRA intends to address.

It would appear that none of this mattered to the majority, which would wish away racial and ethnic disparities in society with a simple maxim. "The way to stop discrimination on the basis of race," the Chief Justice has famously stated, "is to stop discriminating on the basis of race." But this is more easily pronounced than fulfilled. Consider racial and ethnic profiling in law enforcement. The way to stop discrimination is to stop discriminating, right? Except, as many would suggest in the wake of 9/11, it isn't so simple as that. There are other considerations to be had, they might tell you. And in this case, I would say the same thing. And so, I imagine, would the New Haven Civil Service Board.

Really, what were they supposed to do? With a test result inviting a Title VII claim, a test that seems indefensible under that same law, and claims of unequal access to study material hindering the preparation of minority firefighters, what was the CSB supposed to do? I'm hard-pressed to come up with an alternative to simply starting over.

But I will suggest that the majority opinion, that Ricci et al. were unfairly denied promotions, flies in the face of the facts. Not only are employers entitled to hire or promote none of the candidates in a given applicant pool, there is also a matter of simple arithmetic. Which of the seventeen or so plaintiffs was guaranteed by this examination a promotion to one of the eight available positions? And which of the zero people promoted to those positions was unfairly bumped ahead of those?
____________________

Notes:

Ginsburg, J. Ruth. "Dissent". Ricci v. DeStefano. Supreme Court of the United States. June 29, 2009. SupremeCourtUS.gov. June 29, 2009. http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

 

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The ones given in Saint Paul and Minneapolis were rigged, as was determined by investigation and sworn testimony and so forth. One of those went so far as to have a backup plan in case some black guy nailed all the exams - a psychiatrist interview, allegedly to weed out arsonists and thieves (which is a legitimate concern) that always found high-scoring blacks unfit (low scoring blacks were sometimes passed, but they had failed the exams - - - - - ).

But that isn't the point. The point is that in the US we have a long history of civil servant "merit" exams set up - in various ways - to give advantage to white men related to current jobholders. We've fought this battle many, many times, and we have tired of the expense and trouble and intervening years of injustice.

And so when an exam delivers such extreme racially disparate results, the burden of proof is now on the exam to show that it was fair and relevant and honestly given.

Is there something wrong with that rule, given the history and reality of the current situation?

 

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Hopefully, after this ruling, thst will no longer be the case. Judging the validity of a test based upon the racial makeup of who does well or poorly is racist.

Yes, I would say that. Life is never 100% fair, but that doesn't justify outright racial discrimination by the government nor does it justify forcing employers to discriminate against nonminority candidates. Doing so is racist.

Hmm. I didn't even realize I was quoting him. But common sense is common sense. It's nice to see that on the high court if no where else in the federal government at the moment.

 

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No one judged the validity of the test in that manner.

So is allowing it to be done.

Asshat activism is common sense?

Seriously: do you think it's common sense to assume that a test admittedly badly flawed, admittedly significantly irrelevant to the task, and producing such extraordinarily skewed results by race, was fair and honestly given?

 

What should be done is:

Rather than discriminating to prevent discriminaiton, the government should punish it when it's found, as it was in the case you referenced in Minneapolis.

Then show how it is badly flawed. Show that it is irrelevent to the task. Simple statistical analysis based on the idea that every test ever given anywhere must result in an equal distribution of results among all races is unacceptable.

 

Life isn't statistics. The idea some ratio should always turn up is a fiction.

I've said as much, in less flattering terms.

 

Yes, there is.

It's guilt by association. It's also upending the Constitution, in that it forces a plantiff to be guilty until proven innocent. Frankly, this kind of rhetoric is frigtening, and would be more so, had I not seen you espouse similar versions in other circumstances.

 

The conservative outlook

Yes. The conservative outlook is that the only solution to inequality is to extend it.

As I pointed out to Madanthonywayne, it is a question of the general and particular. The liberal/conservative split on this is fairly clear: Liberals appeal to ideas pertaining to society; conservatives appeal to ideas pertaining to individuals. The broader struggle of people in a society is to reconcile those two aspects.

For you and me, the problem won't go away until racial and ethnic minorities achieve and entrench general representative equality. That is, once, say, black firefighters also have the heritage that white firefighters do, so that—looking to Ginsburg's dissent—black firefighters have access to the same historical (e.g. familial) benefits that white firefighters do, we can say that black firefighters have achieved a measure of practical and effective equality.

Conservatives, on the other hand, want to say, "Okay, the racism of the past was wrong. The only way to be fair to everybody is to extend the effects of that past racism that was wrong." This is the practical effect of their constant appeals to "merit" that focus solely on the individual and forsake any consideration of the relationship between individual and society. They would pretend that the event is over after the rock plunks into the water. The ripples that spread from the event are, as they see it, a separate event entirely and therefore entirely unconnected and thus irrelevant.

There are some pretty big waves crashing on the shores of American equality. But since we, the current generation, didn't cause them, we shouldn't have to worry about any damage they cause. Rather, we should go surfing and enjoy the benefits they provide. And if anyone resents us taking leisure and enjoying a benefit of their destruction, well, they're just wrong to think that way. The way to get over resentment in society, of course, is to stop resenting anything.

 

I might say the same thing about the liberal outlook. Certain minorities were discriminated against in the past. So, the solution is to discriminate against someone else now. Someone who had nothing to do with the previous discrimination. Because, as we know, two wrongs make a right. Right?

If you want to address the effects of past discrimination, do so by improving the education and preparation of minorities; not by gaming the system or by discrimination. Giving minorities jobs they don't deserve, or admitting them to schools they aren't qualified for really just sets them up for failure and perpetuates the idea that they are incapable of success without such measures. It also increases resentment between races and fosters racial identity over national identity; thereby splintering us into competing tribes rather than uniting us as one American people.

 

Do you really wonder why I say you're racist?

Of course you would.

Look, you can't make the effects of discrimination go away overnight, no matter how much you might pray to Jesus or wish upon a star.

Right. Because we all know that the only way to reduce the effects of discrimination is for the victims to simply suck up and make more sacrifices. The people who enjoyed the benefits of that discrimination or receive the benefits of its effects certainly shouldn't have to give an inch or lift a finger.

I look forward to the day that your party and its supporters stop making the same "two wrongs" argument and let those improvements happen.

I fail to see how ensuring that standards are fair equals giving minorities jobs they don't deserve.

Ah, so the effects of racism are wrong if they demand a toll from the beneficiaries of its effects. Makes perfect sense.

Sorry, but people choosing to be offended by the need to correct wrongs just don't move me.

 

amen

 

No, they scrapped the results because, under federal law, the test results would have triggered (in fact, now, will trigger since they have been reinstated) a federal investigation by the Justce Department to see if they city violated federal race discrimination laws.

The net effect of the decision will be interesting. It used to be that if you could prove statistically that your race was being discriminated against, the defendant had to provide evidence of a non-discriminatory reason for the result. Here, the City said the reason was to avoid a federal investigation and that huge costs that would entail. If the defendant's reason is facially plausible, the burden then shifted back to the plaintiff to prove that the real reason was different than he one stated.

I have to imagine that the law is now (a) prove that, statistically, your race was prejudiced by a decision, and (b) you win! No matter what non-discriminatory reason the defendant has. The good news is, now blacks can soe the city too, prove that they were underrepresented in the tests top 20, and then, they win too! Everybody wins because its doesn't matter what the reasons were and that they had nothing to do with race.

This is a case that, at best, will be limited to its facts, and at worst just turned anti discrimination lawsuits into a free for all where the defendants have no chance. My guess is the former. You will see it cited, and then conspicuously not relied on by lower courts, who will continue to use the burden shifting test.

 

that a very contrived argument, can you explain the reasoning behind it?

 

One interesting note is that of the applicants that passed the exam, the largest number of any group that were not going to be considered for promotion were the whites. 41 passed the exam, but only 17 could expect promotion, at least according to the articles I've read.

 

Who asked minorities to make sacrifices? You can't sacrifice that which you never earned. The only expectation is that everybody perform at the same level on an exam. When some did not, other people were told, "Sorry, you're too light colored, and your ancestors did some bad things, so YOU have to make the sacrifice now." That's justice!

No. They shouldn't. If there is proof that they did something wrong on their own, then yes, but seeing as how the Constitution expressly prohibits the tainting of blood, there's no way that individual fire fighters should be held accountable for ancestors who they never knew. Shit, show me how these white fire fighters discriminated against anybody on their own! The only thing here that has been shown is that white people did too well, and now should be asked to make sacrifices because blacks did too poorly.

The solution to this problem is as much the Republican's fault as it is the Democrat's. Our education system is fucked, royally. One party is dedicated to stripping the system of funds, the other seems obsessed with allowing under-performing teachers to keep their jobs and removing overall test performance as a factor.

If there is an issue here, then the solution is not to deny individuals of their success but to re-focus on what leads to in equality: poor education. This goes both ways. The people (black and white) who didn't do well should take a good look at their efforts, their work and their dedication. Those in government should see this as a wake up call on investment: spend the money now to prevent a permanent underclass of people (and their are more whites in this under-class than minorities) who aspire to nothing, produce little, and sap money out of society from womb to tomb. But, instead, we have people making the white fire fighters seem like devils for DARING to demand that the city live up to its promise to them. We actually have people, like you and other liberals who are acting like the white fire fighters are engaging in some kind of histrionics over this. Where's their justice? What happens to the efforts that they put into doing well? How do they get rewarded?

They don't. They did too well and were too white.

~String

 

Bravo.

 

WTF does "guilt by association" and "innocent until proven guilty" have to do with handling a civil service examination? Is an examination a "plaintiff"?

Let's take this slowly: we are not judging people, we are judging exams. We are not even firing or hiring, let alone incarcerating by legal force under the Constitution, anyone. We are accepting or discarding a civil service examination - a thing with no rights whatsoever.

There are many ways they can be flawed. In the US many of these ways have been operating, for generations, both by specific design and as a side effect of other designs, in thousands of places, to screen otherwise well-deserving and even superior black job-seekers from desirable civil service jobs. That is not ancient history - it is the current and relevant reality, part of the personal life experience of most of (to pick one example) the upper level administration of the fire departments in most cities.

Is that one of those things that's "just my opinion"?

The main indication that a test is operating like that - for any reason at all, from racism to incompetent exam design - is extreme (that's extreme, not sorta kinda) racial disparity in the results. Such disparity is not "proof" of anything, of course, but it is the single most significant indication of possible trouble. We know that because we are adults who have been paying attention for more than ten minutes to the patterns of abuse of civil service "merit" exams in those thousands of places for all those generations.

Now the question here is what to do with a civil service exam that produces the main indication, exhibits the main characteristic, of a flawed exam, in exactly the kind of situation in which those flawed exams have been most commonly abusive.

And the answer is, by Federal rule after years of experience with these exams: that the exam be shown - in the judgment of competent independent observers after careful and public consideration - to be reasonable and not abusive. Or that it be discarded. Your choice.

That has nothing to do with "upending the Constitution". Get a grip.

edit in: it's actually goofier than that, even - the "innocent until proven guilty" criterion, already ridiculous, would apply to those discarding the exam. They are the defendants. So you've got it backwards as well as completely irrelevant.

 

That was Coune, Ice. Not me. FYI.

~String

 

Sorry for the insult.

I fixed it by attributing correctly, rather than by picking a different quote. Less typing.

But as long as I'm at it:

Histrionics? Life isn't fair, and there are penalties for bad city administration. The penalty in this case would be having to sit for a second, better vetted examination. Alternatively, they could pay to have this one vetted properly. That seems to me to be a fairly light penalty, compared with the one facing the black firefighters, for bad governance.

The white firefighters are not demanding that the test be carefully vetted, notice. They are demanding that its results be accepted regardless of their legitimacy.

And until we solve the education problem, these "merit" exams that screen out all the blacks and hire the family and friends of a favored in-group are to be accepted without question?

 

You wrote: "The point is that in the US we have a long history of civil servant 'merit' exams set up - in various ways - to give advantage to white men related to current jobholders. We've fought this battle many, many times, and we have tired of the expense and trouble and intervening years of injustice. . . . And so when an exam delivers such extreme racially disparate results, the burden of proof is now on the exam to show that it was fair and relevant and honestly given."

That's guilt by association and guilty until proven innocent.

Essentially, it's guilt by association because you are saying that since all of these other exams were discriminatory, we should ASSUME that any new exam that doesn't pass enough minorities is discriminatory until we prove otherwise. You are, in other words, lumping it in with previous bad exams, simply because it is an exam, and then demanding the exam exonerate itself after the fact. You aren't assessing the exam first, labeling it second. This is the same sort of chicanery that happens with election laws in the South. They must all past muster, beforehand, because of deeds years gone by. . .

You're correct in one sense, wrong in another. Judging the exam judges both the people who made it and the people who took it and says something about the performance of both.

Granted, but I have a problem with beginning the entire investigation under the asupices of something is racist because something else was racist and having the burden of proof sit on the side disproving something -- or proving a negative, something infinitely harder than proving a positive. You, on the other hand, do not. And you have consistently argued, on this site, that investigations are started with similar guilty premises. The law is not supposed to work that way.

I don't know. It's stated with no corroborating evidence. I don't know shit about fire department's in most cities, don't really care. My point was about how the investigation should proceed, not whether racism is alive and well in America (it is and always will be).

I do know that in the city I used to live in, the White police officers won a huge class-action lawsuit against the city because they were passed over in order to promote minorities with less qualifications. So this issue cuts both ways.