Sonia Sotomayor Tapped For Hight Court

This and that

Possibly they are. And yes, they've been wrong before, but here's the important question: Are the courts wrong, or is the law wrong? Plenty will argue that the law is wrong. The court is wrong if it fails to apply the law. However, the arguments against Sotomayor regarding the Ricci decision don't tread into that territory.

The NHCSB made a decision. That decision was to exclude a test that, if acted upon, would demand, under the law, immediate scrutiny. American civil rights law, as Totenberg reported, "treats with grave suspicion tests that produce such racially disproportionate results". Without persuasive evidence that the NHCSB decision was made in bad faith, the court appears to have ruled appropriately: "... because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected."

Unless the court deliberately overlooked valid and persuasive evidence that the Title VII explanation was just a front, it has no legitimate lever for rolling that stone. If the court is supposed to invent a lever, as such, then one is advocating judicial activism. Which brings us back to UNC's William Marshall, who said of the Ricci decision, "It strikes me that's a hallmark of judicial restraint."

The test and its results were enough to compel the NHCSB to discard the examination results. Kimberly West Faulcon explained the situation for the Los Angeles Times:

The exam at issue in Ricci was given in 2003 to more than 100 New Haven, Conn., firefighters competing for eight vacant lieutenant positions and seven vacant captain positions. But although a number of African American and Latino firefighters passed the exam, only two Latinos and no African Americans scored high enough to make the promotion list. The fact that virtually all of the 15 promotions were likely to go to white firefighters caused the city to look carefully at its test and consider whether there were better criteria for evaluating applicants that would result in more racially diverse leadership in the fire department.​

Right there, the city was looking at a prima facie discrimination claim.

In part, the city's reaction was defensive. Because of the magnitude of the racial disparity on the exams, which would have ensured that white firefighters received the great majority of the promotions, an attorney for the city concluded that there was a strong likelihood of a lawsuit by African American and Latino firefighters if the promotion list generated by the test were used. Since Title VII was signed into law in 1964, it has been illegal for employers to use tests that have an unjustified racially "discriminatory effect."

(ibid)​

Did the city attorney make a bad decision? Compared to, say, telling the president that he is above the law and that torture is legal under American statutes, this one won't be tacked to any sheds. Any but the most deliberately misleading assembly of case histories would back that conclusion. And whether you think the law is right or wrong, at that level, the attorney is working with case histories. The NHCSB, if taken to court by black firefighters, would be eviscerated.

Still, though, what is that unjustified racially discriminatory effect?

That raised the question of whether a fill-in-the-bubble exam was really the best way to evaluate whether someone was suited to a leadership position in the fire department. In fact, the company that made the test admitted that some of the items were "irrelevant" in New Haven. One question, for example, asked the test-takers whether fire equipment should be parked "uptown, downtown or underground when arriving at a fire." The question was based on information relevant to New York City firefighters, and was on the exam even though the city of New Haven has no "uptown" or "downtown."​

You know, when the company that designed and administered the test admits that some of the questions are irrelevant to the qualifications being assessed, it's fair to wonder whether the test is a reliable measure of anything. And with an unreliable test and a strikingly disparate result to consider, what attorney is going to tell his client to stand firm on the test in the face of a Title VII claim?

The fact that whites were disproportionately represented among the top scorers on the test is not surprising. Whites and some Asian American groups, on average, score higher than African Americans, Latinos and other Asian American groups on fill-in-the-bubble tests. Researchers have offered a host of reasons to explain racial gaps in test scores, including disparities in financial, educational and cultural resources, as well as psychological phenomena.​

This is an issue we've been hearing about at least since I was a teenager. We used to have it over college entrance exams, with one side arguing that there were racial disparities in the questions themselves, and others seeing nothing disparate with expecting poor urban minorities to understand the cultural references of blueblood New England.

And eventually changes were made. Those changes had no detrimental impact on white students taking the tests, except insofar as minorities were scoring a bit better, which increases the competition for whites.

But New Haven did not scrap its promotion list simply because whites had higher scores on the test than minorities. The city understood that Title VII does not automatically prohibit employers from using tests on which whites do better than minorities. In fact, the law acknowledges that tests are useful for evaluating and comparing job applicants. But, under Title VII, it would be illegal for a city to promote firefighters based largely on a test that is not a good measure of a junior firefighter's worthiness to be promoted.

(ibid)​

And here we find the heart of the matter. A better test producing the same results would greatly reduce the NHCSB's civil rights exposure. But given the combination of this test and the results it produced, Ricci would have a better case going after the testing company than the NHCSB.

New Haven's attorney correctly interpreted Title VII to mean that the city's firefighter test should measure "who is going to be a good supervisor ultimately, not who is going to be a good test-taker." In other cases, judges have concluded, based on expert testimony, that written, multiple-choice tests for firefighter promotion like the one in this case contain the "fatal flaw" of failing to test for "supervisory ability." The company that made the New Haven Fire Department exam acknowledges that its test does not include any questions that measure a test-taker's ability to supervise or lead other firefighters in the line of duty.

(ibid)​

Would you assert that in assessing candidates for a supervisory position, one has no compelling reason to test a candidate's supervisory ability?

Do you think it possible that the courts might have found this consideration important? Would they be wrong to do so?

New Haven's potential liability was made greater by the fact that the city has been advised by testing experts, before making the promotions, that alternative, better tests were available. One expert in firefighter examinations told the city about promotion tests that produced less racial disparity.

(ibid)​

Now here lies a curious exposure. The NHCSB went forward with the exam, knowing there were problems? They might have been contractually bound, and faced a large payout if they dropped the testing company. We don't know that. We don't know why they went forward with the test. The oral arguments before the Supreme Court run 93 pages. I'm combing through them as I find the time. Have at it, let me know if you find the answer to why the NHCSB went forward with the test having already been advised that there were better tests available that could have avoided what eventually came about.

Chief Justice Warren Burger wrote, in a unanimous 1970 decision:

Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job, and not the person in the abstract.​

Now, admittedly, West-Faulcon's is only one narrative, but I find it interesting that, at the outset, Mr. Coleman, arguing before the Supreme Court on behalf of the petitioners, makes a fallacious argument, which does make me wonder about their actual legal position. There were more firefighters who scored well on the test than there were available job positions, so when Mr. Coleman states that, "Neither equal protection nor Title VII justified New Haven's race-based scuttling of the promotions Petitioners earned through the civil service process mandated by Connecticut law", he's arguing a straw man.

Ricci's score on the test does not guarantee promotion. You seem to have overlooked this in responding to my post, so I reiterate it yet again: The test score did not guarantee promotion, only establish eligibility for consideration.

Raw evidence of discrimination is not the question the courts were charged with considering. Rather, the question pertained to how the test and its results stood in relation to the law. Which brings us to:

Lawyers work with the law as it is written and the case history defining it. This is why we both despise and adore lawyers. Ricci et al. have not challenged the constitutionality of Title VII. The argument you pose would do exactly that.

Unless the judge in question is Sonia Sotomayor? I find it highly suspect that you rush to indict Sotomayor as a racist while making excuses for three white judges specifically. I mean, let's consider an implication of your argument: A district court judge and a majority of the 2nd Circuit Court of Appeals made a racist decision, but Sotomayor is the only racist among them?

I would think it a safe assumption that even you can see the macabre humor about that.

I understand that it is your opinion. And I do accept that it is "racist" inasmuch as race is being considered at all. However, it's "racist" in much the same context that my preference for orange sherbet mixed with vanilla ice cream over mint chocolate chip constitutes discrimination.

A nice, safe, speculative, low-effort answer. Then again, I didn't really expect anything better.

Maybe it's time for you to establish that Sotomayor is a racist?

• • •​

There are problems with this test specifically. There are problems with bubble tests generally. And this is part of what confounds me about your argument: Why am I the one that looks up the facts and assertions surrounding the case? Not that I shouldn't, but not that you shouldn't, either.

Your political simplifications for the sake of parroting partisan talking points are nothing new, but I do wonder just how seriously you intend to be taken if even a modicum of background reading is too much to ask.

Make the case under Title VII.

Long term job performance is not the same as a bubble-sheet test. Surely, you're aware of this?

The merits of their play? Imagine for a moment that Combine performance was the only measure of a player before the draft. Players limp into the combine sometimes. They show up with the flu, or put off surgery in order to perform. Their one-day results do not necessarily speak to their overall capabilities.

Luckily for fans, coaches and scouts are aware of this fact.

It's not impossible, but the combination of two factors—

• The test was flawed, as deemed by experts and openly admitted by the company that designed and administered the test.

• The test produced results that the federal government historically views as suspect under Title VII of the Civil Rights Act.​

—set that consideration aside.

However, considering that only two of fifty minority candidates who took the test scored high enough to be eligible for parole, your suggestion also demands the question of just who the hell is the NHCSB hiring in the first place. Of all the minorities in the fire department's employ, ninety-six percent are simply not qualified for promotion? That result wouldn't make you do a double-take? Fuck, if I was on the NHCSB and saw those results, I would have done a spit-take.

Or maybe the only racial-minority firefighters interested in getting a promotion were the unqualified ones. You know, because blacks and Mexicans are so damn lazy, or so I've been told more times in my life than I can remember.

This wasn't just a statistically deviant result. It was grossly deviant.
____________________

Notes:

Totenberg, Nina. "Sotomayor Critics Focus On Firefighters Case". All Things Considered. May 29, 2009. NPR.org. Accessed May 31, 2009. http://www.npr.org/templates/story/story.php?storyId=104730833

West-Faulcon, Kimberly. "Ricci vs. DeStefano: A test on race". Los Angeles Times. April 24, 2009. LATimes.com. Accessed May 31, 2009. http://www.latimes.com/news/opinion/la-oe-westfaulcon24-2009apr24,0,5548886.story

Burger, C.J. Warren. "Opinion of the Court". Griggs v. Duke Power Co.. Supreme Court of the United States. March 8, 1971. Legal Information Institute at Cornell University Law School. Accessed May 31, 2009. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0401_0424_ZO.html

"Oral Arguments". Ricci v. Destefano. Supreme Court of the United States. April 22, 2009. SupremeCourtUS.gov. Accessed May 31, 2009. http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-1428.pdf

 

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Your definition of any political group is absolutely useless, in that it derives its language from an appreciation so far to the Left that there is no "Left" in America. Accordingly, any pronouncements you make should be dutifully ignored by those interested in useful conversation.

Oh, please.

Spare me the high horse.

Supreme Court nominations have been about politics -- and little else -- ever since Roe v. Wade, or perhaps even further back. To pretend one side plays the game "fair and decent" while the other doesn't is pure insanity. I don't doubt that both Democrats and Republicans believe they are acting for "right" and "honorable" reasons, but in actuality both are merely pushing the agendas of the main fringe groups that constitute their bases, and in the process of doing so, meet the very definition of politically "scheming."

You could read Clarence Thomas' book for an apt description of what he had to endure at the hands of Democrats or refer to the leaked memos about why Estrada had to be "stopped" to see just how down and dirty the game is played by the donkeys. But I doubt any of the above would penetrate your entrenched brain, seeing as it undermines your "evil" Republican paradigm.

I don't know that anyone has gone so far as to call La Raza "racist," but it is an organization whose politics I am uncomfortable with.

 

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what is it with the US and "judicial advocasy"?

The high courts have a certain roll and that is to provide an oversight over legislation and a decision on how to applie that law when the legislative branch makes it abiguas. They also (at least in australia) provide ALOT more detailed reasoning for there decisions than the legislative branch ever does

 

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My contention (backed by numerous polls, survey sites such as Political Compass, and so forth ) is that a large fraction - probably a general majority - of Americans fall solidly but not extremely into the category "left libertarian" as distinguished by Political Compass. Certainly a majority of those posting here do. That would put them somewhat left of, and noticeably more authoritarian than, my own political stance.

But I have long suggested that you, in particular, self-described as a person interested in sensible discussion, ignore all of my posts. Your interests in sensible discussion are obviously derailed by them, and to no worthy end. How many threads have you trashed with your little obsession here? Dozens.

And if I were you, afflicted with amnesia concerning the circumstances of that unqualified incompetent's nomination, I could take Thomas's self-serving whines seriously.

So is pretending the treatment of nominees such as Thomas, Bork, Miers, or even Alito, is to be compared even up with the treatment of nominees such as Sotomayor. There is playing politics, and there is sacrificing principle and integrity to play politics. There is scheming for advantage based on a foundation of sound government overall, and then there is the behavior of the Republican Party's spokesmen and pet media since Reagan. I am not praising the Democrats - let's repeat that, it seems a difficult concept for some: I am not praising Democrats, any Democrat, the Democratic Party, any Democratic administration or initiative or program, in any way whatsoever - when I observe that the federal level Republican Congressmen and Executives have been for twenty five years now in a class by themselves for vandalism and depravity and betrayal of sound governance. They've set records.

You don't? Really?

And yet you expect to be taken seriously when you discuss, say, Tom Tancredo's political group, which is the Republican Party.

 

I simply don't buy the argument that the racial or ethnic makeup of those who pass a multiple choice test is proof that the test is racist. Consider the plaintiff, Ricci:

Frank Ricci, the lead plaintiff in this case, is not a naturally gifted test taker. In an affidavit, he said he has dyslexia, that he studied as much as 13 hours a day for the firefighter promotional exam, that he paid someone to read the textbooks onto audiotapes, prepared flashcards and worked with a study group. And he passed.​

Did the African American and Hispanic firefighters who took the test study as hard? I doubt it. Clearly the information needed to pass the test was available in the text books Frank Ricci studied. The fact that all those Hispanic and African American firefighters performed poorly is due to their own laziness.

What's the counter argument?

"Typically, a written test has a large amount of what we call adverse impact," Yusko says. "It really does reduce diversity."​

So African Americans and Hispanics (but not Asians) are too stupid to pass written tests? That's the argument? As a Hispanic, that argument pisses me off. You don't help minorities by making excuses for them and changing the test because it's too hard for them to pass. You tell them to buckle down and study, like Frank Ricci. Of course, since he was the wrong race, his high score was thrown out. So maybe studying is not the answer to passing tests. Maybe the answer is political agitation to ban the fucking tests.

On the plus side:

Chief Justice John Roberts has repeatedly expressed overt hostility to what he has called the "sordid business" of "divvying us up by race."​

So there's good reason to believe the Supreme Court may well overturn this decision and even the applicable portion of title 7.
http://www.npr.org/templates/story/story.php?storyId=103289178

 

Who do you think is making that argument here? Not Sotomayor, for sure.

In a similar case in my home town, similar test results were later shown to have been due to rigging of the tests in question and coaching by interested parties.

That common pattern, seen hundreds of times in the decades since WWII in the US, is one of the reasons for the rule.

 

Actually, you didn't, beyond asserting your oppinion-as-fact over and over. Not one single shread of verifiable proof was offered to support your claim that: "You have no way of evaluating or verifying anything redacted in those reports, or providing them with meaningful context, much of which is known to have been destroyed."

Hmmm. Odd, that seemed like an affirmative statement. It should be verifiable since it's pretty obvious that you made it, and attempted to assert it as some sort of fact. When one says, "There's no way..." the expectation is that they can prove that such a statement is true. Since we both know you have ZERO experience in intelligence (as demonstrated by your utter lack of any knowledge of the CIA and its history), it's pretty safe to assume that your just some social diletante who's come to his opinions by way of massive amounts of left-wing reading. Which is wonderful, but really--as you've demonstrated consistently--lacks any substance. It sounds pretty. You have great prose and your vocabulary is to be commended, but little to nothing you've posted is actually supported by real facts.

But that was your statement, and only in your twisted universe is asking a person to prove a direct statement akin to proving a negative. You talk about Counte and me being taken seriously. Your claim was blatant and not proven in any of your eleven replies in the Pelosi/CIA thread. You did, however, repeat over and over again that the documents were unprovable. You did state, over and over, that you were right. You did NOT however demonstrate how you knew what you were staying, nor did you demonstrate a clear understanding of how CIA memo's worked or what was the process of evaluating them. You merely stated what you thought, asserted it as obvious fact and then retreated again and again to the defense that proving your assertions was akin to asking you to prove a negative.

I didn't realize you needed the intellectual equivalent of gender norming in order to continue in a debate.

"Numerous". How many is that? And, I'm sure you have them on hand to let us in on what these polls are and who took them? Right?

Well, I know they seem trashed to you, the fact is that is just your opinion, again, asserted as fact. The Mods have received ZERO complaints about counte on any of these threads, and I'd be willing to wager that he hasn't received a single official complaint in the last year. While I know that you'll retreat to something like, "Well, an absence of complaints doesn't prove that he hasn't trashed them," it's comforting to know that your loan statements don't prove the opposite either. "Trashed", in this case, is just your POV and the only reason these threads appear "trashed" is because you haven't been allowed to run around roughshod, posting whatever unsupported, left-wing nonsense that pops into your brain.

How has she been treated? Or Are you confusing Limbaugh and Gingrich flapping their yaps on the airwaves withe the Republicans in the Senate? AFAIK she hasn't even been questioned by a single senator yet. Dealing with pundits on the airwaves does not equate to being treated by the actual party which (by way of people like Steele, Cornyn, Hutchinson and numerous others) is obsessing about pleasantries. Thus far, the Republicans in the Senate have been tripping over themselves trying to keep ahead of Democratic claims that the Republicans were opposing her because of her race, which is absolute nonsense. You didn't see Democrats jumping to approve Estrada when he was nominated.

~String

 

Several hundred, on issues such as health care reform and government bailouts of banks and the like.

Its' a negative statement, as assertion of a negative. I can't prove it, and neither can anyone else.

What I can do is argue for it, and I did - I listed the ways I could think of that you could evaluate the redacted parts of those documents to support your bizarre contention that you could get "the whole story" from them, and observed that you lacked the means to employ any of them. You can't, for example, as I pointed out, check the context of other information possessed by the CIA, to ascertain whether the info garnered from KSM was new and significant, ore even consistent with the known.

That isn't "proof", because there could be some way I haven't thought of, and there is no proof, because no one can know that they have covered all the possibilities - it's a negative statement, or if you want to be technical a negative existential statement, and cannot be proved.

Now if you wanted to discuss the matter, maybe even argue against my claim, there's plenty of opportunity - you could, for example, describe how you would be able to evaluate the redacted parts of those documents, somehow. But you prefer to be otherwise engaged.

To you belligerent wastes of time, maybe - or maybe not, it's hard to tell.

Simple enough. Get a clue. There's been entirely too much of this kind of assertion:

from people who just a few lines back posted shit like this

and this

without a hint of self-awareness.

 

Your contention is as bogus as just about everything else you claim on this site. That is, you make political judgments based on your understanding of the political spectrum, and the fact you might find other people who agree with your spectrum (Tiassa, for example) doesn't make it so. I tire of reading the two of you blathering such nonsense as Nancy Pelosi isn't a liberal because, well, you two say she isn't -- primarily because she isn't liberal enough for either of you. The fact she represents probably the most left-leaning district, in relative terms, in this country means little or nothing to either of you, as you both have to tend your secret (and personal) flame of political judgment, right?

As for polls, I'm not sure what the fuck polls have to do with what you are talking about (if you even have a point). You labeled someone a "wingnut" and his points "bs" simply because you didn't agree with them. I stepped in and pointed out that the term "wingnut" is next to meaningless, because in your world, everyone is right of you, and you have a demonstrated penchant for throwing around hyperbolic labels (like fascist). It would be amusing, if I knew you weren't so serious. And posting political polls of what people think in no way changes this or "confirms" you original (and quite foolish) assertion that String is a "wingnut" or that he posted BS.

And for the record, you ought to keep your mouth shut when speaking about feces and bulls. You have posted at least three lies or falsehoods or whatever you want to call them in less than a week, either from ignorance or desperation or stupidity (CIA budget not controlled, Yellow Cake incident, content of Downing Street memos). You ought to be a little more careful. Or at least bother to educate yourself on the issues, as your performances these past few weeks have been more than just a little dire. . .

You have also, to my continued amusement, made claims about documents nobody has seen. In one case, you claim the unseen cannot enlighten anyone (the redacted sections of the torture memos), while in another you claim that missing or destroyed documents will prove Dick Cheney is the father of all evil-doing in the West (or something). This, to put it mildly, looks like the horse is talking out of both sides of his mouth, if, in fact, he isn't talking out of his ass. Either way, claims about documents no one has seen or can see should be taken for what they are: Bullshit and ether pretending to be legitimate argument.

Then post a handful.

I deal in facts. And when I assert an opinion or a supposition, I can point to something that got me there. You? I don't know what you deal in. You make claims (Bush is gay, etc.) and never defend them. You get asked questions and then refuse to answer. You object to one point (water-boarding is deadly) and then retreat from that issue (having asserted nothing substantive) because you have created so many side arguments within your empty-headed assertions that the point of the conversation shifts to whatever ground you feel like occupying. Finally, my favorite, is your tendency to do what you are doing here: You argue about arguing, denying what you have said, asserting grammatical clauses, sentence structure and whatever else you can seize on to confuse, befuddle and distract. You are, I admit, quite a skilled rhetorician, but in the end, it's you're still building dream palaces on the city landfill -- and none of it means anything.

Qualifications aside, do you really think Thomas would have endured such treatment if he were a Democrat? We do, after all, have plenty of precedents to go by. One could look at how Condeleeza Rice and Colin Powell were dealt with. Or to reach for low-hanging fruit, how Michael Steele is being treated. There is a pattern there that seems to show a difference between how black Democrats and black Republicans are treated. And yet, you sit here and pontificate about Thomas and his "whining." What that man went through was a sham, and I don't wish it on anyone, Democrat or Republican.

This is a perfect example of the ether I am talking about.

What we have here is an entire paragraph that is totally off-topic. Initially, it is impressive, but closer inspection reveals that it is little more than opinion and bias dressed up to look like reasonable conclusions (about an entirely different issue). My remarks dealt with the foul play associated with judicial nominees and how BOTH sides tend to play dirty. The practice dates back (probably) to Adams burning the midnight oil appointing all those Federalist judges. I don't like the fact our judicial system is political, but it is what it is, and overall, it does a decent job. What I object to is idiotic statements that defy reality. Arguing that Republicans are somehow worse when they play this game than the Democrats is just such a statement. But of course, you think blocking, like what, forty or fifty of Bush's nominations is OK, because they were all nut-jobs who were unfit for the job right? The Democrats, on the other hand, NEVER nominate people who the Republicans might view in the same terms, right? That's just not possible. . . in your world . . .

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If someone has, then I haven't seen it.

That's an old game. Pick the outlier and posit him as the whole. Tancredo is a one-issue man from a gerrymandered district, though the fact he stays in office probably has much to do with immigrant backlash in that part of the world. His run for president was DOA. Oh, and the Democratic party has kooks like Kucinich in it, too (a man who I believe you respect -- only the rest of the country doesn't). Or Barbara Boxer. Or (formerly) Cynthia McKinney. But I don't run around putting them up as the image of the party.

 

Really? Because blacks and Hispanics are lazy? Really? Really really really?

I was wondering how long before you or one of your fellow conservatives would walk into that one.

Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. He studied hard and got the sixth-highest score on the exam—qualifying him for one of the eight open spots. But despite all that, Ricci still hasn't received his promotion, which is the basis of his lawsuit.

What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That's because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci's specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all.

So why did every report on the case begin and end with Ricci's compelling employment story? Might it have something to do with the fact that the conservative organizations supporting Ricci used his sympathetic tale as the centerpiece of a successful media blitz leading up to oral argument before the court? Could it be that they wanted to make sure the justices understood just how Title VII could impact the lives of ordinary Americans like Frank Ricci? Could they—oh the horror!—have wanted the justices to empathize with Ricci's plight?

We have heard a great deal this week from the right about the stomach-churning evils of empathy. How it's a call to "emotive," lawless, unhinged judicial conduct that turns the federal bench into a cross between Oprah's studio and a lunatic asylum. The quality of empathy—which President Obama has said is a priority in a Supreme Court pick—has been derided, mocked, scorned, and brought into close contact with Michael Steele's behind. Which makes it rather problematic when you consider that conservatives have in fact been playing the empathy card a lot more effectively than progressives in recent years ....

(Kendall and Lithwick)​

Or, in more direct and political language:

It's hard to imagine anything more contradictory than (a) the right-wing argument that empathy and political opinions have no place in judicial decision-making and (b) the right-wing argument that Sotomayor wrongly decided the Ricci "firefighters" case because what happened to Frank Ricci was terribly unfair and because affirmative action is a bad policy.

(Greenwald)​

And then there's Adam Serwer, whom Greenwald admits beat him to the punch:

... just prior to criticizing Sotomayor for believing that empathy lies "at the heart of judicial decision-making" he recounts the story of Frank Ricci and how Sotomayor cruelly refused to ignore the law in order to grant the verdict conservatives wanted. Krauthammer argues that conservatives stand for the principle of "blind justice," (you could say "color-blind justice," since to do otherwise would be enshrining what Krauthammer calls a "racial spoils system") as well as standing "against justice as empathy."​

One of the wearying things about the whole Ricci brouhaha is that it ignores certain other people, namely the other people who qualified for consideration. Frank Ricci's dyslexia isn't a valid issue in the context of the actual lawsuit. It's political pap, intended to tug the heartstrings and blur people's conception of the issues under examination.

As the poster boy? Maybe, maybe not. Did the other firefighters who passed the exam? Maybe, maybe not.

Yeah. You know, don't you? So cough up that magic bean of information.

Seriously, you're going to fall back on the lazy blacks and Mexicans bit? Good heavens, I even covered that in my prior response to you, and now you pull it out? What, am I giving you ideas?

Then be pissed off at yourself. What we have is an educational system that historically has been tailored to the perspectives and needs of the white majority culture. This has been a long debate during our lifetimes, so there's no reason to pretend surprise that it shows up here. And every step of the way, progress has met fierce resistance from people who are simply unable or unwilling to consider that there could be any other explanation than nonwhites being too lazy.

Don't take me wrongly here: I understand that it's much easier to go with the conservative political argument that the blacks and Mexicans are just lazy than to attempt to understand the myriad complexities of the real situation. Consider Rachel L. Gregory's article for the Summer, 2005 edition of The Georgetown Journal of Legal Ethics:

Andrea Curcio interpreted the disparity between common complaints about lawyers and the skills tested on the bar exam as an indication that the bar exam does not protect the public from incompetent lawyers. She also notes a greater danger of the failure of the bar exam: incompetent lawyers can pass bar exams. "[P]eople who can answer multiple-choice questions may get a law license even though they cannot stand up in court and answer a judge's question, cannot research the law, and cannot negotiate or perform factual investigations."​

Does that sound remotely familiar?

That raised the question of whether a fill-in-the-bubble exam was really the best way to evaluate whether someone was suited to a leadership position in the fire department. In fact, the company that made the test admitted that some of the items were "irrelevant" in New Haven ....

.... In other cases, judges have concluded, based on expert testimony, that written, multiple-choice tests for firefighter promotion like the one in this case contain the "fatal flaw" of failing to test for "supervisory ability." The company that made the New Haven Fire Department exam acknowledges that its test does not include any questions that measure a test-taker's ability to supervise or lead other firefighters in the line of duty.

(West-Faulcon)​

Looking back to Gregory:

The Florida bar exam is a two-day exam consisting of essay and multiple choice questions, and it is closed-book. It tests the candidate's knowledge (or temporary memorization) of information as well as the ability to spot issues and analyze them as a lawyer should. However, in practice it would not be advisable for a lawyer to limit her time on a question and not consult with resources before giving advice to a client. The candidates who tend to take more time and answer with certainty after checking with more experienced lawyers or with books, case law, etc. would need to learn another way of thinking to succeed on the bar exam. Those who are able to memorize and recall quickly and guess incorrectly a smaller percentage of the time are rewarded and not taught the value of checking their work before answering a question. Technical knowledge is only valuable to a beginning lawyer as a place to start when given a set of facts or a problem to solve. The answer given to a client should never be comprised entirely of recalled data,48 yet the bar exam format can give candidates the false confidence of passing a test on the law and proving competence to answer questions as a lawyer. Not only is this bad preparation for the practice of law, but it can fail to recognize as competent those who can only think as lawyers in practice should. This format can allow incompetent lawyers to pass, but it can also fail candidates who would be successful in practice, casting tremendous doubt on the overall value of the exam.​

Stop and think about your peers in education. Did you never know a bright mind that tested poorly? Myself, I've know very smart people who generally score below their potential on multiple-choice standardized tests. And in college I knew people who could pass AP standardized tests in subjects like English and History in high school who arrived at the university unable to write a research paper. I hardly think I am unique in this experience. Indeed, I would laugh at the suggestion were it raised in any serious context.

Now add to that notion that the test the firefighters took (A) included questions that were irrelevant to service in the NHFD, and (B) did not test for supervisory ability. Additionally, the NHCSB faced a data set of test results that spelled a Title VII problem.

Gregory noted that,

Even the majority of the Florida Supreme Court could not escape the argument that testing bias is a substantial problem that cannot be ignored. Not only does a poorly conceived bar exam fail to protect citizens from incompetent lawyers, but it needlessly prevents qualified candidates, disproportionately minority candidates, from joining the bar.​

Applying your theory, we can conclude that the problem is that minority law students just aren't smart enough, and if they are smart enough, they're just too lazy to score well.

Of course, then you get to pat yourself on the back for being an Hispanic who rose above your peers, which coincides nicely with your individualist outlook. So it's win-win for you. Great. Now what about the rest of the world?

Or is that too socialist a thought for your tastes?

It's also worth noting that your note about Asians is inaccurate:

Even panethnic labels such as Asian or Latino mask important ethnic distinctions within these larger categories (Lopez & Espiritu, 1990).

(Mickelson)​

The general performance of Asians varies depending on what part of Asia one comes from.

Neither do you help minorities by fighting tooth and nail to keep the educational system focused on a limited racial or ethnic outlook.

Insupportable politics. I mean, admittedly, it sounds like a good line, but it's not accurate.

Think of it this way: Standardized testing is plagued by racial and ethnic disparities in the test results. This applies to high schools, firefighter exams, and even the Florida Bar Exam, at least.

So just ... think about it for a moment. Your answer to that result is that blacks and Hispanics are simply too lazy to do the work? Is that really a position you want to stand on? High schools students? Civil servants? Holders of doctorates? Yeah, a black man with a doctorate is lazy. Does that really sound right to you?

You mentioned "delicious irony" in an earlier post. Well, here's some more: A Republican banking on judicial activism.

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII.

(Kendall and Lithwick)​

That the court may well overturn Title VII when none of the parties contend it is unconstitutional? That would be a remarkable stroke, indeed.
____________________

Notes:

Kendall, Doug and Dahlia Lithwick. "Crimes of Compassion". Slate. May 15, 2009. Slate.com. Accessed May 31, 2009. http://www.slate.com/id/2218393/

Greenwald, Glenn. "False excuses for anonymity and irrationality on affirmative action". Unclaimed Territory. May 29, 2009. Salon.com. Accessed May 31, 2009. http://www.salon.com/opinion/greenwald/2009/05/29/anonymity/index.html

Serwer, Adam. "How Conservatives See the Law". Tapped. May 29, 2009. Prospect.org. Accessed May 31, 2009. http://www.prospect.org/csnc/blogs/...=2009&base_name=how_conservatives_see_the_law

Gregory, Rachel L. "Florida's Bar Exam: Ensuring Racial Disparity, Not Competence". The Georgetown Journal of Legal Ethics. Summer, 2005. FindArticles.com. Accessed May 31, 2009. http://findarticles.com/p/articles/mi_qa3975/is_200507/ai_n14684223/

West-Faulcon, Kimberly. "Ricci vs. DeStefano: A test on race". Los Angeles Times. April 24, 2009. LATimes.com. Accessed May 31, 2009. http://www.latimes.com/news/opinion/la-oe-westfaulcon24-2009apr24,0,5548886.story

Mickelson, Roslyn A. "When Are Racial Diparities in Education the Result of Racial Discrimination? A Social Science Perspective". Teachers College Record, v. 105 n. 6. August 2003. UIowa.edu. Accessed May 31, 2009. http://www.uiowa.edu/~c07b154/mickelson.pdf

"ACLU Report Highlights Racial Disparities in WASL Scores". American Civil Liberties Union of Washington State. September 18, 2006. ACLU-WA.org. Accessed May 31, 2009. http://www.aclu-wa.org/detail.cfm?id=524

 

But unless one believes that blacks and hispanics are lazier or dumber on average than whites, then a then proportion who pass the test will lead to an easily measurable statistical anamysys for the likely of a given test having such a racially skewed result as the one at in the CT case.

When you have a test where no African Americans finished in the top 20, and again assuming they are equally as intelligent as their white colleagues and put in , on average the same effort, that is quite a statistical anomaly. It's such an anomaly, that its evidence either that the assumptions are wrong or that the test was unfairly skewed against blacks or in favor of whites.

One way that might be in is the generally inferior education minority students get through childhood. One can imagine that it gives them bad study habits and gives them a competitive disadvantage at test taking. If that were the case (and I am not sure it is, but it's one possibility that does not require "overt" racism), why would the state not have an interest in rectifying that imbalance in the system? It seems to be part and parcel of the 14th amendment powers because the State's. by law, administering what appears to be (and what the City of New Haven, not the federal courts seems to have believed to be) a racially biased test would not afford minorities equal protection of the law.

The city decided that there was something wrong with the test, and you have decided that there was not. Maybe the city of New Haven is wrong...but is that the sort of issue that judges' determine and not the other branches? It seems to be an issue of fact that kmore than one branch can look at, but that federal judges should defer to state officials on...so why do you want activist federal judges overruling the local executive and legislature on that determination? Do you <3 judicial activism or just hate federalism?

Did you not just assert (without any evidence in this particular case) that they were all "lazy"? Do you imaginbe calling minorities lazy is less of an insult?

You also don't help them by *assuming* that their failure to garner more than one of the top 20 slots is due to their being lazy and whites being test-taking go getters who work hard. Ordinarily, a court should look at arguments and facts presented by both sides on a debate like this, but just assume that minorities fail because they are lazy.

In this particular case, though, the court didn't have to look at the test. The city did itself, and it decided to throw the test out because it was racist (the lawyer for the city said, "The fact of the matter is it’s a flawed test"). Do you think the firefighters had a constitutional right to promotions? Otherwise, on what basis should the court have decided that the City itself does not have the right to set aside a test that it set up in the first place. The City could have just as easily, and completely constitutionally, gone "Eeny-meeny-miney-moe," because the Constitution does not mention local government jobs being given out on the basis of test results (or even meritocratic selection procedures at all, let along meritocratic selection procedures of questionable impartiality—thet the City said were in fact "flawed").

Because as we all know, none of them did. How do we know that? Because only one made the top 20, and since we know the test is perfect in every way, the fault has to be with the test-taker. I can see that the test certainly might have been fine and fair overall, but you have to see that you are assuming the fault lay with the minorities and not with the test, despite the fact that the results of the test were skewed. There is no reason I know if to decide that the skew and is based on laziness, and not poor test design or other socially endemic factors that arise from racist origins. It could be that minority applicants are all innately lazy, as you suggest, or less intelligent than whites, or,a s the City asserts that the test was flawed.

All of which are things the court should thing about and look at inm ost cases, though not this one since the local legislature decided the test was fishy enough to set it aside.

By the sam city government who implemented the test on the first place, not by any judges.

Maybe the answer is tests that seem to yield results that look more liek the population of test takers. In other words, maybe the answer is "we don't need fucking tests, we need fair fucking tests." I know that you think this test was fair, and you could be correct in that, but I am having trouble figuring out why you know more about the test than the City that administered it.

They well may, and their reasoning may well be colored by their race when they do so (as no whiote man likes to see another white man held from the superior positions). They will, if they do, have to justify overturning the action of the local government, tell the local government that they cannot promote racial diversity, and pretend they they are not setting policy by doing so, because "setting policy" would be the city's job, except when its not.

 

So, there are several hundred, huh? Would you like to provide us with these much-vaunted polls that show that Americans are left-libertarian? Or, again, are you just making statements that we're all supposed to swallow, hook, line and sinker?

Then, why again did you make it? You're now so foolish as to buy into nonsense that is neither supportable or provable? You stated quite plainly and as fact that: "You have no way of evaluating or verifying anything redacted in those reports, or providing them with meaningful context, much of which is known to have been destroyed." As if your omniscience and seasoned experience in the field gave you some insight that the rest of us missed out on. You didn't just say, "Well, I doubt you'll find anything..." You made a clear statement of fact that:

• There's no way of evaluating them (Inferring you either (a) have experience in the matter or (b) have seen them)
• That most, if not all, have been destroyed (Inferring that you have information that clearly states the information was destroyed)

You supported neither statement with any evidence or facts. The last bullet-point is actually a positive statement and asserts that you have either seen or have original source material stating that someone has seen the documents pertaining specifically to torture have been destroyed. That's not a negative statement. It's quite a positive one.

So, as "bizarre" (to quote your words) would be the person who's totally backed away from proving his statements (still waiting on your references on the Political Compass) and each time desperately changed the subject.

Oh, I'll tell you how I will evaluate them: I'd read them. That's a sure-fire way to start. Then I'd do what has been done in the past to connect the dots: allow legal experts and former members of the CIA and armed forces who are in the employ of numerous law firms to evaluate them. It's happened before (Watergate, amongst others). Then, GOSH, I'd actually see if, from KSM's mouth, came something like, "A terrorist hit will happen in LA and here are the people involved..." Then look a the FBI reports to see if they acted on that intelligence and apprehended any suspects. It's really simple. And only in your la-la land is it impossible to connect the dots. Which is all left wing fear-mongering. As I've stated before, the left trembles with fear that something actionable, especially something that saved and American city, came from tortured individuals. Then the action might be justified. Better to let Americans die at the hands of terrorists.

But, you know, I'm still waiting to hear how you know for certain that "there's no way to know..." this and that. Nothing, not one piece of proof has come from your mouth to support any of those statement beyond your opinion. Nothing. No references to previous issues of documentation and torture. No references to past issues where this exact thing has happened. Just more of ice's claims as fact (see: above statements about polls showing Americans are left-libertarian as evidence of this fact).

Oh... poor Iceaura. Being forced to defend himself, his lies and his unsupported claims. How horrible it is that this world isn't a bizarro paradise where people like you just cannot make rash statements and have them instantly accepted.

~String

 

The basic problem seems to be that you don't know what a left-libertarian political stance is. Try Google, keyword, and thinking, if you are really curious. Here's an example, to get you started:
http://www.rasmussenreports.com/pub.../56_oppose_any_more_government_help_for_banks

Now you want me to do your thinking for you, too? Christ almighty. It's called a forum, you know - it's for discussion and argument between reasonable people, or something like that. An alien concept to some, obviously, but there it is.

It's also the way you'll end - no better informed than the week before, but ready to make all kinds of worthless guesses and extrapolations furthering the real agenda, which is a petty media attack on Obama or Democrats or whatever.

Unless you can think of some way to acquire clairvoyance, or mindreading, or sending, or some other means of filling in what you need for "the whole story".

Have you noticed, btw, that your contention that you can evaluate these documents is "just an opinion" - one without the slightest backing in argument or evidence, and on its face about as likely as third set of teeth?

I don't. I already went through that, above. It's called an argument, and reasoning - and it's based completely on my own inability to imagine how you, or anyone in your position, could possible evaluate those documents to get "the whole story". I mentioned, for example, that as far as I can tell from your self-presentation here (not an upper level CIA agent involved, say) you have no idea what was known by the interrogators going in, a key bit of context that you would need to fill in somehow in order to even begin to evaluate those documents. But if my imagination has failed me, and you can actually evaluate those things by means I have not considered, any time you want to describe them would be none too soon - this thread's getting long.

This, for example, is comedy:

Even in that juvenile fantasy we see that we need a whole lot more than the redacted parts of those documents - all kinds of FBI reports with verification, just for starters. Maybe - maybe - what if - a formal investigation, with subpeonas and so forth? Just a thought.

That's not what it asserts, little twister, but a welcome change of subject anyway - have you forgotten about the hundreds of hours of destroyed video and documentation of CIA "interrogation" sessions that were all over the news a few months ago? The millions of "lost" emails from the Republican Party server, some concerning the CIA evidence and interrogation results relevant to the Plame affair?

Man.that ain't the half of it. I'm so omniscient as to flat out assert that you can't hold your breath for two hours, or fly with little bat wings you made for Halloween, or light fires through telekinesis. My ego rules, and I make radical pronouncements all over the place. No wonder you guys can't even seem to figure out what they are - they're so outlandish they're incomprehensible !

That's one explanation, anyway.

It would account for this kind of stuff:

Any idea what in the thread here that was supposed to be about? Me neither.

It arrived from the sewer with this:

In which our pal there appears to first deny and then proclaim a familiarity with Republican Presidential and VP candidate and frequently quoted media source Tom Tancredo, whom I chose as maybe the easiest of the several media quoteds who have called La Raza a racist organization. Count, a self-described professional journalist, denies having heard any of that.

 

tiassa that is an interesting case to contrast. It COULD be classed as discrimination under australian law that someone with dislexia had an unfair disadvantage in promotion for a job where that condition wasnt a major impediment to the roll applied for. Discrimination against the disabled is a major cause for legislative concern here as well as racial and sexual discrimination and just as illegal wether overt or inadvertant

 

So, you first make an assumption about the range of abilities and effort among the population of firefighters. Then, when your data (the test results) does not match your assumption, you assume the test is invalid? Is that the proper way to analize data? Shouldn't the theory of a flawed test be supported by more than your initial assumption that the distribution of test scores should be equal across all racial and ethnic groups (which is based on.......what?)

So it's your opinion that the best way to rectify the situation (assuming that your idea about decreased performance being caused by inferior education is true) is to game the system so as to mask the relative incompetence of minority candidates? I'm sorry, but if your idea about inferior education is true, it's not right to promote those of lesser merit above those who are more qualified. You may say, "It's not their fault that they went to bad schools.", and that's true. But it's also not anyone's fault that they lack natural ability. Promotions should be based upon merit, not race. To address the issue one should seek to improve the education system, not perpetuate the social promotion idiocy that may well be responsible for the lower level of competence in the first place.

My assertion is better applied to individuals than races. Anytime an individual performs poorly, I'd attribute it to their lack of effort. Few of us perform at anywhere near our potential, so unless the person in question suffers from some kind of mental retardation or other disability, their poor performance is their own fault.

Telling someone that they failed because of their race rather than lack of effort places them in the helpless position of a victim. Telling them they failed because they didn't try hard enough puts them in charge. It tells them to buckel down and try harder. In my opinion, that is of much greater assistance than turning people into victims because of their race.

Again, I am treating the minority applicants as individuals. Individuals responsible for their own performance. Individuals capable of improving their level of performance. You are treating them as people who, by reason of their race, are somehow incapable of meeting the same standards required of everyone else. I tell any applicant that performs poorly to get off his ass and study harder next time. You tell him, "Don't try harder. It won't help. You are bound by your race to fail on this horribly unfair test." Who is treating the applicants fairly? Who is treating them like adults rather than perpetual victims? Which attitude empowers them? Which turns them into helpless victims?

Frank Ricci played by the rules, worked hard, and performed extremely well because of it. Then, becaue he and his fellow top performers were the wrong race, the results were thrown out. That's racism in my book. Suppose the top scorers had all been black. Do you still think the results would have been thrown out?​

 

Are the test riggers?

Tests can be rigged against all the individuals of a certain kind.

How do you know there is much, if any, relative incompetence among minority candidates?

There wasn't much in Saint Paul, Minnesota. As soon as the rigged tests and illegitimate coaching disappeared, they started doing much better.

It probably was. And Ricci should complain. If the tests hadn't been so obviously a problem, his high scores would have been kept. Who is responsible for employing such an exam, and why?

 

Is there any evidence that the test was rigged or that any of what you described as occuring in your home town occurred here? If so, then of course throw out the test results. But I've heard of no such evidence.

I don't. I was responding to one of Pandaemoni's hypothetical explanations for the poor performance of minority candidates on the firefighter's test.

 

You were asked, by two people, to provide a few of the "hundreds" of surveys that detail how the American people are left-libertarian and this is the best you can come up with?

One poll about one issue that in no way, shape or form allows someone to make a broad generalization about the American political spectrum?

Truly, you ARE full of shit and have little or no foundation for any of the swill you continually spew forth on this website.

No investigation is needed.

Simply release the redacted parts and any and all other documents that will give the American people the ability to make an educated decision about how well the program performed. I've suggested this several times, but it's all investigation, investigation with you, leading me to conclude that it's not really the TRUTH you are after, but rather, political scalps of people you do not like.

It's in this thread because you called someone's opinion bullshit.

For fairness sake, I felt compelled to point out that you've been trucking bullshit round these parts for a few weeks now, and as proof of that assertion, I listed specific examples of cases where you were dead wrong about something, ignorant of the truth or chose to lie. I will repeat it now for you again, since you seem hard of hearing:

"You have posted at least three lies or falsehoods or whatever you want to call them in less than a week, either from ignorance or desperation or stupidity (CIA budget not controlled, Yellow Cake incident, content of Downing Street memos). You ought to be a little more careful. Or at least bother to educate yourself on the issues, as your performances these past few weeks have been more than just a little dire. . ."

My advice stands.

I haven't. Sorry. I don't watch talking heads on TV much, don't pay attention to Tancredo. If he called them racist, then he did. I don't care. I'm not calling La Raza racist. I just disagree with its politics, which are overtly racial.

 

Doesn't La Raza translate as "The Race"? It's hard to imagine a magazine called "The Race" not being racist.

 

The city itself determined that the test was biased. So they failed not "because of their race, bit because the test was biased against their race. If you disagree with that the solution is to vote in a new city government, not cry to federal judges "You should overrule the State government when I don't like the outcome!"

That is true, which is why everyone should tell victims of rape, "if only you had fought harder and hadn't been so sexy." It puts them in control. Sure, sounds a little harsh in those cases when the problem *is* external to them, but we're going with your unproven and unfounded assumption that that can't be true.

The test didn't, when the test systematically excludes every single individual within a well defined group, the test has an effect on the GROUP, even though they each took it as individuals. What you are doing is assuming the test was fair, and then looking for an answer based on that meritless assumption. Well, I agree that is you ASSUME the test was fair, then the problem must be with the applicants who failed. The it decided that wasn't the case, and you then decided that you know better than that even without having looked into the issue. And that judges should set the city's decision aside, because they should share your position and give no deference to the local government.

It is not logically valid to assume that because the plaintiffs are sympathetic and worked hard, that the test was fair. Those two are logically separate issues.

In the same way when you tell every individual in a group (let's say "blacks" that they failed to place because they are "lazy" you are in effect telling that to the group, because a "group" is nothing more than a "collection of individuals." In fact, if you are individualizing your criticism, then tell me what the study regimens of any of the black test takers was and how you think it was insufficient. I doubt you can, because you are not in fact making individual critiques, but broad brush assumptions about the group as a whole because you don't know enough about them ot their study habits as individuals.

As I said, neither do I, but that is why I am not keep on overruling the City, who had better information than I do.

That is true. That does not in any way shape or form prevent racism from occurring. Many minorities make it into positions of prestige because they greatly outperform their majority counterparts and do it despite racism. Many more try very hard and racism holds them down.

If I tie 90 pounds of weight to your legs and then you and I race, the fact that I've handicapped you does not necessarily mean you will lose, as you are capable of training tio run faster than me even with the added weight. That does not mean that the handicapping is fair nor that it doesn't exist.

No I am raising the possibility that, as the City believes, the test is unfairly geared in favor of certain races over others. If the world were not racist I do believe they would have been proportionartely represented in the final outcome, because unlike you I do not assume that the blacks and other minorities who took the test were all, systematically, "lazy." (It is unbelievable to me that you think that sort of statistical anomaly, that every black taking the test was "individually" lazy makes any sense. The statistics would suggest that that would be incredibly unlikely unless the population of of minorities were very small, or all had a "laziness" trait in common as compared to whites. That's just math. It is was a random, fluke, individual trait, then you would statistically expect the pass rate for blacks and other minorities to have averaged just about the same as the pass rate for whites.)

You are also telling people racism exists, and that they should suck it because even if the local government thinks racism skewed the test, you are aiming to make sure that there's nothing a victim of racism can do but accept his position as a second class citizen. Sure, you hold out the hope that if he falls within the 99th percentile, then maybe they can squeeze through the door.

As for me telling them it was a horribly unfair test...I am merely saying that it might have been. These things happen and the City seems to agree that that was the same. If the city disagreed and people who failed sued, then I would expect the courts to look at the test and make a decision. (Their decision, though, would include evidence of the statistical unlikelihood of a test's systematically excluding all blacks as a group (i.e. collection of individuals). As I can see you do not follow statistical analysis, you would not care for that part, but it is a tool of logic that can be used as evidence to determine a race-neutral test from a racially biased one. Statistics would not by themselves, be dispositive, but they'd be evidence.)

The courts might then rule that the test was not biased, in which case those who failed the test would lose their hypothetical lawsuit. The courts might rule that it was biased, in which case the test would have to be set aside.

In this case, the local government (which in terms of the principle of federalism gets no less deference than a State government would) made the determination. The courts therefore need not make the inquiry, but merely have to decide whether to defer to the local government's finding. Because local hiring practices are a matter of local (nor federal) law and because it is unlikely that a State government in CT is systematically and invidiously biased against whites (who make up the majority of the population and can adequately protect themselves at the ballot box), I see no reason for the federal government to usurp State power.

Exactly! Oh, wait, you think the answer is "madanthony" don't you? :shrug: The difference is that you are only being fair to the 20 who scored highest, and telling the rest that the proper response to an unfair test is try harder because all tests are presumed fair, even when the people giving the test say it isn't.

I, on the other hand, think that all the "applicants" including those outside the top 20 deserve fair treatment that you want to deny them. (Not that you *really* want toi deny anyone fair treatment, of course, but you keep accusing me of being that irrational, so only fair that I use the same hyperbole against you.

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You are also pointing out victims. In your case through, the victioms happen to be white? Under your theory, you are setting up the white race for years of subpar performance because they will take you message to heart (and the message of Board of Regents v. Bakke and any other case where whiotes asserted "reverse discrimination"). Perhaps you are treating whites like "temporary" victims (as opposed to perpetual) and that's the distinction you think saves this.

That is exactly wrong. It's not because of THEIR race, it's because of the OTHER races that somehow did not make the top 20 at all despite that being incredibly unlikely in a statistical sense if the test were race neutral. Imagine that you had a sack of 87 white marbles and 13 black marbles. What are the odds that if you draw 20 stones from that bag that you will get no black marbles at all? It's less than 5% if the drawing is done blindly. It's considerably more than 5% if the test is rigged or flawed.

Here the City declared that the test was flawed, and you've offered no reason to doubt them other than a sob story about how hard the people worked. Yes, the people worked hard, but that doesn't mean the test was fair. Obama worked very hard to get elected. Suppose ACORN had engaged in voter fraud would you have let him take the Presidency on the grounds that it would be "unfair" to take his victory away?

If the City were smart they would have. For political reasons they would likely have had an inquiry first, but the politics of the situation are that whites are not historically a threatened minority, which is why there is a difference in practical treatment of how you resolve the anomalous results, but I'd say it is equally entitled to be resolved.

If the City did not, then the white applicants would sue and the courts would make the same inquiry they would make if blacks had brought the suit. If the City did set the test aside, then I would *not* expect a federal court to give as much deference to the City in that case, but the reason is "history." The 14th amendment was in part passed because the States were poised to be hostile to African Americans. A decision that negatively impacted them fits that model. If there were a history of legislatures and State governments systematically oppressing whites, *then* I'd expect decisions negatively impacting whites to receive less deference from federal courts, but at the moment that only tends to happen on the cube-shaped planet of Htrae.