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Ricci don’t use that number

New Haven Fire Department

Yesterday’s 5-4 Supreme Court decision in Ricci v. DeStefano predictably resulted in lots of bloviating by gasbags who didn’t let complete ignorance of the court’s holding get in the way of releasing tons of heated air into the atmosphere.  Having actually read the 93 page decision I am happy to inform you that it is neither the end of Affirmative Action nor a repudiation of Sonia Sotomayor.

First of all a little background:

Title VII of the Civil Rights Act of 1964, 42 U. S. C.§2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”).

When originally enacted Title VII only prohibited intentional discrimination in employment. A subsequent SCOTUS decision and later an amendment added employment practices that while neutral on their face had the effect of discrimination. An example of this would be a requirement that police officers be at least 5 ft 10 inches in height, because such a requirement would tend to discriminate against women and Asians because most of them could not meet that requirement.

An employer can still use “disparate impact” practices if the practice has “a manifest relationship to the employment in question” and there was no “legitimate alternative that would have resulted in less discrimination.”  Understanding Title VII is key to understanding the decision.  (The court spends a couple pages discussing what I just condensed into two paragraphs.)

The Facts:

The city of New Haven, Connecticut has been sued over racial discrimination before:

In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 per-cent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107officers in the Department only one was black, and he heldthe lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).
Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American.

So New Haven tried to do the right thing:

When the City of New Haven undertook to fill vacant lieutenant and captain positions in its fire department (Department), the promotion and hiring process was governed by the city charter, in addition to federal and state law. The charter establishes a merit system. That system requires the City to fill vacancies in the classified civil-service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list. Certified promotional lists remain valid for two years.

The City’s contract with the New Haven firefighters’ union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant’s total score. To sit for the examinations, candidates for lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses.

After reviewing bids from various consultants, the City hired Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates.

With the job-analysis information in hand, IOS developed the written examinations to measure the candidates’ job-related knowledge. For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. Each test had 100 questions, as required by CSB rules, and was written below a 10th-grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.

IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job-analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.

IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs,and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria.

Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Ibid. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics. Ibid.

Those facts are undisputed.  New Haven went through a lot of trouble coming up with a fair and racially neutral examination.  Whether it was actually fair or not is disputed.  One side argued that the results  prove it it was unfair and the other side said the test was fair and the minority candidates just didn’t perform as well as the white candidates:

When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests.  Other firefighters said the exams were neutral and fair.And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.

The key facts here are that the city went to a lot of trouble to come up with a test that was neutral and fair and that the only real evidence that it wasn’t was the results.  So the city was between a rock and a hard place.  If they certified the test results the minority firefighters would sue.  If they didn’t certify the test results the white firefighters would sue.  The vote was 2-2 with one member recused.  The tie vote meant that the results were not certified.

The Decision:

Some of the white and Hispanic firefighters then filed suit alleging they were discriminated against because of their race.  Five members of SCOTUS agreed:

Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII’s disparate-treatment provision. The City counters that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparate-impact provisions.” Brief for Respondents 12.Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates.

Now you have to remember that the Title VII says “race” not “minority.” It is technically correct to say that the city based its decision on the fact that too many white people and not enough minorities did well on the test. Although they turned the statute’s intent on its head the court is correct that the city was treating white people differently because of their race. To look at it a different way, imagine if the city had thrown out the exam because all the top scorers were black or Hispanic and the city wanted more white candidates.

Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.


Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.”

The court said that the city screwed up because they didn’t have a “strong basis in evidence” to believe they would lose a “disparate impact” lawsuit:

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. See Firefighters, supra, at 515. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In other words, it wasn’t enough for the the city to believe they would be sued if they certified they test, they had to reasonably believe they might lose the lawsuit. The problem is that wasn’t the rule . . . until yesterday. Under previous precedents the city made the right decision, as did the trial court and the appellate court.

Like I said, the decision is not the end of Affirmative Action and it is not a repudiation of Sonia Sotomayor. As a matter of fact she isn’t mentioned at all.


I didn’t discuss the concurring or dissenting opinions because this post is too damn long already.


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130 Responses

  1. I’m warning everybody right now that I’m in a bad mood and I’m not putting up with any crap.

    Disagree with me and each other all you want but be polite.

  2. In other words, it wasn’t enough for the the city to believe they would be sued if they certified they test, they had to reasonably believe they might lose the lawsuit. The problem is that wasn’t the rule . . . until yesterday. Under previous precedents the city made the right decision, as did the trial court and the appellate court.

    Thank you for distilling this down to the REAL issue. I’m already sick of people using this as a political sledge hammer on both sides. It was based on long-standing case law that you rightly pointed out, has now been changed with increased hoops in the area of test validity and disparate impact.

    The employer was in a “damned if you do and damned if you don’t” situation. The experts advised them based on prior case precedent and the SCOTUS basically expanded those obligations.

  3. How would it be a repudiation of Sotomayer, the guy she is replacing actually shared her position, as well as three others?

    That being said, the ruling pretty much puts busines in the darned if you do, darned if you don’t position. I forsee a litigation nightmare.

  4. What has the administration said?

  5. “In other words, it wasn’t enough for the the city to believe they would be sued if they certified they test, they had to reasonably believe they might lose the lawsuit. The problem is that wasn’t the rule . . . until yesterday. Under previous precedents the city made the right decision, as did the trial court and the appellate court.”

    Good summary and I think that the above is the key point. The SCOTUS changed the rules but didn’t remand and give the City the chance to meet the new standard. They simply changed the rule and then…ruled.

  6. myiq2xu

    Is this your bunch?


    Does this mean that the best qualified person will get the job no matter what gender or race? If so it is a good ruling. If it just opens the door to more law suits it is not a good ruling



  7. I read the details of how the written test was constructed — and it was a fair as possible for multiple choice tests. The applicants were even given the SOURCE material for the tests.

    Perhaps what is needed is for future tests — firefighters need to be taught HOW to take tests. Also they need to be taught how to study for tests. It is doubtful that the ones who failed were dumb — my bet is that they simply don’t have the skill set needed to take a multiple choice test. Studying for a test requires a different sort of comprehension. There are some people who can read and retain the trivia needed to pass a test — and then they dump the information from their brains — the score well but don’t retain the information.

    That fire department spent a lot of money developing the test — now they need to spend money to teach the firefighters HOW to take the tests.

    That’s my 2-cents worth.

  8. myiq — from what I read the SCOTUS did not disturb the 4/5ths rule, is that correct? Just the related obligations.

  9. Great post, myiq! Thanks for breaking it all down for people like me who would never try to read a legal decision and wouldn’t understand most of it if we did.

  10. Excellent summary and analysis. As a complete noodle head, I concur.

    It will be interesting to see how employers behave and how future rounds of hiring discrimination cases are ruled. But we can be sure the bloviating will continue and the hot air generated will likely contribute to global warming.

  11. I actually thought this was a pretty good ruling for cities and school districts et al. What it says to me is that if you go through a rational process to try to ensure racial fairness in the treatment of employees and identify important job skills that are objectively quantified as much as possible, try to develop an assessment of those job skills— then you have a foundation for making a decision that is based upon the idea that you want and need qualified people for the jobs. It seems to me that the department was making a determined effort. What people seem to forget to often is that in such a process, racial minorities have an experience and learning curve to wrestle with that is partly about past discrimination—but in the long run you want qualified people and the leverage is not in throwing out the test but in supporting those with past deficits in overcoming them. It takes time. If you haven’t had algebra you will probably have trouble going into a calculus class regardless of your color or your ambition. It sounds to me like this city did the right thing and should get a gold star for the effort they put into trying to make that process work fairly for all.

  12. And by the way mylq, that is a great post. Thanks. This is why I like TC Best of All!

  13. ok the MEME is out there already dinner with Obots was fun I mentioned the 60 vote senate majority that obama should be able to pass a whole host of legislation…

    What they said….

    “Obama will not be happy with a 60 vote all democrat majority sending him legislation. He will need at least 10 to 15 republicans to sign on so that the spirit of bi-partisanship can be demonstrated clearly to all Americans. He (Obama) will not propose or accept any legislation be sent to his desk that is not bi-partisan in nature.”

    God do these guys get there MEME’s by reading us or what?

    • Uh huh. So for everyone who voted Democratic as a repudiation of Republicanism, congratulations, you got hosed!

    • Because BO is Bush III. When is everyone going to get it?

      • Well in this one respect he isn’t Bush 3. Bush never had any problem sending something through without any democratic support.

        Personally, I think bipartisanship is overrated. Particularly when you have been veering right so long that you are standing on a precipice.

        • Well, he’s perfectly happy to bypass Congress when it suits him, like with Gitmo.

  14. the bottem line should be in this or any job that the best qualified person should get the job .

    • So you have no problem with a town that is 60% minority having a fire department that is 80% white?

      You think that is fair?

  15. would anyone think it would be ok if there was someone qualified to drive a school bus would it be let there kids ride in that bus if the person was not qualified to drive a bus

    • That wasn’t the argument. These people all had the prerequisite requirements for their position, they just all did not qualify for the promotion. Furthermore, they chose not to promote anyone which means no “unqualified” individuals received preference.

      • No “unqualified” persons received preference, but some qualified people were denied the promotions they had earned, despite ample evidence that there was no racial bias at all in the testing process.

        Everyone who agrees with this SCOTUS decision is not in the camp of “poor persecuted white men abound in this country”. Not at all. Some of us are just trying to be fair, to everyone – that includes getting rid of bias and racist hurdles where they exist, but not assuming they exist where they don’t. And crying “bias!” where there is none makes the job of opposing bias where it DOES exist harder, not easier.

        • Nobody said they were in that camp, but some of the people looking at a fire department that’s 80% white in a city that’s 60% black are not necessarily motivated by malign intentions to cry bias where it clearly doesn’t exist in order to make it difficult to combat bias where it does exist, either. Some of those looking at the situation suspect that there’s potentially a deep systemic problem within this department in terms of recruitment and hiring tgat created huge disparities in who’s elligible to even take the promotion exam and that,, in their opinion, may ultimately be much more significant in terms of the future of the city than the outcome of one test, and much more urgently in need of being addressed. Not some of us want to be fair to everyone, all of us want to be fair to everyone, to the degree it’s possible. Where we differ is where we feel the greatest unfairness falling and where it most urgently needs to be rectified, whether it’s with the community that depends on these services or with one or another group of firefighters.

        • Myiq, how can Kennedy go on at great length with evidence from several people including the test writer about how standardized tests produce disparate impact,, quote everybody about how there are much better hands on testing alternatives that are job related, cite two cases that establish the principle that methods that produce disparate impact can be set aside if there are as good or better job related options that will not produce disparate impact, and then rule for the plaintiffs? That was just weird.

          • oh that totally misnested. It was supposed to go to the bottom

          • Because the city had chosen a particular method of testing and had gone to a lot of trouble to make sure it would be fair and racially neutral. Once they did that they were stuck with the results.

            If they had decided to use performance tests in the first place it would be a different story.

          • Yes but if standardized tests always produce racial disparities, which several people stated, and Griggs and the paper company vs. Moody held that methods which produce racial disparities should be replaced by methods that don’t, and several people also said there were other methods available, I don’t get it. The part where he tried to reconcile this at the end, he basically acted as if the fact that all the experts agree that standardized testing produces racial disparities means we should just accept that and not worry. They tried to prevent racial bias, yet they used a method which pretty much everyone agreed produces racial disparities instead of more neutral methods. Even if you try, you can’t make something racially neutral when even the professional test writers believe it isn’t.

          • Yes but if standardized tests always produce racial disparities

            Now you’re getting into rules of evidence – there were two “expert” witnesses that testified to the CSB but neither one actually reviewed the test.

            If it was a proven fact that standardized tests always produce racial disparities then they wouldn’t be allowed anywhere.

          • Well, if I were Scalia I would tell Kennedy to just leave out any evidence that doesn’t support his opinion. Because for a layperson, reading these testing experts testifying that standardized tests pretty much always produce racial disparities, therefore they’re clearly fine and we shouldn’t worry at all about using them can be a WTF? He just completely contradicted himself Moment. 🙂

    • How do you even decide who is the most qualified person to drive a bus? If you can’t drive a bus, you won’t get hired. But if 1000 people apply and they can all drive the bus, what makes one magically the most qualified? Most jobs get a large pool of applicants, all of who can do the job perfectly well. Nobody can figure out who is #1 most qualified or #333. It’s not that simple. It mostly comes down to intangibles like who the hirer feel comfortable with. It’s not like there are 999 idiots and one qualified person. I mean, I doubt I’m the #1 best person in the universe to do any of my jobs.

  16. the same rule should go for everyone & everthing

    • Boogie, please give it up. Did you know that inner-city, minority schools are rated lower than suburban, not to mention private schools on college admissions? So, if 2 straight A students with identical applications are being evaluated, who’s the “most qualified?” Is it fair that the suburban or private school kid is automatically given more points? In a perfect world I’d be the first one to agree with you. But, this is far from a perfect world. Nobody should be punished because when they show up, they’re automatically considered less qualified for a job, apartment, or decent table in a restaurant.

      • dont use that inners city bs …. i dint have a fair shot card on me

        • if there is a test to get a job its the same test in not harder for one race or gender then the other

          • the main reason i voted for hillary was ..i that i thought she was the most qualified person for the job

          • Fine, you win, white men are the most discriminated against people in the world, and minorities are just looking for a free ride. You caught us. Might as well give it up and go apply for all those great jobs people are just lining up to give us on merit.

          • Wow, good for you! You just obliterated the entire history of deliberately discriminatory testing methods with the power of positive thinking!

          • there were alot of unfaire things that happend in the past to blacks . but seem you have no problem doing those sme thing to others … then calling it affirmative action & saying it ok

          • No, Boogie, not in the past. Those things are still happening. That’s the part you’re dismissing. And, it’s not just “minorities.” Ask any woman who’s had to train her boss instead of being promoted for the job she’s earned.

          • Cinie would you bo ok with Sotomayor’s ruling if those firefighters where black or women

          • seroiusly said:

            “How do you even decide who is the most qualified person to drive a bus? If you can’t drive a bus, you won’t get hired”

            But affirmative action should make them give me the job then teach me how to drive.

            99.9 % of the bus drivers in Chicago are black.
            Boogie man come here and play your race card to get a job with the CTA. I would love to have you here

          • You’re comparing apples and oranges. She followed the law because the law takes an interest in rectifying patterns of discrimination whether you agree or not.

  17. Boogie, why do you keep asking that question? If the case was about what, black women claiming that the test was unfair? You can’t change the history of discrimination, so I’m not sure what you mean. I don’t have a problem with the ruling, I have a problem with the case. To me, it smacks of people being upset because they’re not getting the preferential treatment they’re used to.

  18. Fine, afrocity. If we can’t find anyone who can drive the bus, we’ll just go without. Nobody can be trained on the job. You waiters who trail other waiters–we’re on to you! Oh no!

  19. Earlier on my blog, I posted a quote from the Thomas on my blog:

    The Grand Fraud: Affirmative Action for Blacks

    by Thomas Sowell

    No issue has been more saturated with dishonesty than the issue of racial quotas and preferences, which is now being examined by the Supreme Court of the United States. Many defenders of affirmative action are not even honest enough to admit that they are talking about quotas and preferences, even though everyone knows that that is what affirmative action amounts to in practice.

    When any policy can only be defended by lies and duplicity, there is something fundamentally wrong with that policy. Virtually every argument in favor of affirmative action is demonstrably false. It is the grand fraud of our time.

    What of the idea that affirmative action has helped blacks rise out of poverty and is needed to continue that rise? A far higher proportion of blacks in poverty rose out of poverty in the 20 years between 1940 and 1960 — that is, before any major federal civil rights legislation — than in the more than 40 years since then. This trend continued in the 1960s, at a slower pace. The decade of the 1970s — the first affirmative action decade — saw virtually no change in the poverty rate among blacks.

    • Mr. Sowell misses a few historical facts.

      During the 1940’s blacks moved into jobs previously held by whites because the whites were fighting WWII (and blacks were excluded from many military jobs. During the war and the post-war boom many blacks relocated from the rural south to the cities where manufacturing jobs were available.

      Truman ended the segregated military so more black men became eligible for the G.I. Bill. Brown v. Board of Education came down from SCOTUS in 1954, so blacks started getting better educations.

      The entire country saw a rise in their standard of living during the 50’sm but blacks lagged behind whites (and still do).

      • 1) That quote is an excerpt from a larger piece

        2) His main point is that overall the favors translated into no real improvements for the race as a whole. In other words find something better. But I am seeing AA as an issue that some liberals need in their lives to help get to sleep at night and AA is a big fraud.

        This is all really laughable to me because really what is being said is that women and minorities are not self-reliant enough and the American way is so racially and gender conscious to the point that the government needs to intervene.

  20. Cinie ok les just narrow it down to women . im sure those things do happen to women still & i also think its very wrong …. but that dose not make it ok for a women to do them same thing to a man . i think that would be wrong to

    • Then how do you fix it? Left to their own devices, the powers that be have zero incentive to change anything.

    • In the primary election of 2008 race trumped gender.

      “Hillary is a woman but she is a white woman”

      • So, that’s a victory for Affirmative Action, or an argument against it?

        • That depends on who you voted for. I voted for the most qualified person which is how everything in life should be.

          But “aw give the brutha a chance” folks felt differently and if you didn’t vote for him you were not for the black man.

          • It wasn’t an Affirmative Action question at all. Both candidates were not equally qualified, and both are protected under Affirmative Action, so the whole argument falls apart. And, if Obama had lost, and sued the country for discrimination, I would have had a problem with that.

          • LOL!

          • I disagree Cinie it is the very fact that they were not equally qualified but the unqualified person won which demonstrated that the identity politics of the DNC has levels of victimization which are more privileged than others.

            But if you guys want to be right. Ok then when it comes to women and minorities the government needs to disenfranchise white men in order to give the underdogs of society a fair shake in life otherwise they would be rendered totally dependent upon government and at the mercy of the dominant sex and race.

            Wow Sibyls mom couldn’t have said it better.

            Off to bed. Oh Seriously, you can send that reparation check for me to my email address. 😉

          • I’d try to rebut your argument Afrocity, if it made a lick of sense, but, since I can’t make heads or tails of it, I’ll just bid you goodnight.

          • Well, at least we had a qualified person to lose, in the future we’ll probably have 20 people running, all of them morons….

  21. afrocity, i was just useing that as an example i never once mentoned race in that comment . & im my part of texas its just about the opposite as far a bus driver jobs go

  22. Come to Boston, we have 99% white guys in urban transit. They plow into each other a lot but nobody can say they’re not qualified.

  23. think when you look at the last primary it very clear that america gets it & thinks that a women can be potus.. just look at the numbers so i think that that that old thinking that a women could never be potus is gone among the people. its just the good ole boys club that has not figured that part out ..
    that just my take on it .. hillarys 18 mill prove that

    • You keep bouncing around – the Ricci case involves a city that has a history of racial discrimination in employment. The city is 60% minority but has few minorities in supervisory positions in its fire department.

      • Or at Yale university where I did my fellowship. Do you really know why? Geeze, guys stop arm chair proselytizing and actually visit or live in New Haven. The fact that few minorities are not in supervisory positions at ANY place in New Haven including Yale university or hospital system (the biggest employer which does give minorities jobs) doesn’t have a damn thing to do with what AA is NOT doing for them.

        I just love it , people who want to help minorities but don’t know anything about the lives of minorities or what the real problem is that keeps them from being successful and competitive with the so called privileged.

        Go to New Haven and give every minority person a supervisory position then come back in a few years and tell me how it worked out.

        • Again, your argument is so astonishingly not the point that it’s hard to argue with it.

        • Huh?

          • And once again, AA affects the vast majority of the American population. There are possibly more disabled white men who are elligible than black people in terms of sheer numbers.

          • And I say that because you’re always going for this racial paternalism thing where misguided white people try to help black people because they don’t think they’re good enough to compete. In reality it’s a widespread concept that affects millions of different kinds of people, including many of the people who support it on their own behalf.

          • I really admire the audacity of the “Affirmative Action is oppressing black people” concept.

          • As Seriously mentioned there is certainly some racial paternalism, aka patronizing, behaviors going on. Though the larger point is AA is about a lot more, etc. I can see afrocity’s point that such behaviors and AA can do harm at some point. So though it may be audacious to say AA can be oppressive, I think there will be a turning point when it does more harm than good. That would be when at some point it is no longer needed, so if it is continued it would be a patronizing (thus bigoted) policy. Perhaps a good problem to have and hopefully the worst case is that the policy is just not turned off quite soon enough. However afrocity and others think we’ve past that point. Perhaps the arguments should be on how to determine when such a policy is not needed and how you tell that.

        • How do you know we don’t know anything about the lives of minorities?

          We aren’t suggesting EVERY minority be given a supervisory position. The point is to have a number of minorities assume supervisory positions. Firefighting is a job that is often generational. The thought process was having minorites fill this position would serve as inspiration to the younger minority members and would allow these people to mentor other minoritites

          • Didn’t you know that you hurt people when you help them?

            If you make life tough enough for minorities that helps them grow strong.

    • But there isn’t another woman in politics who has anything like Hill’s qualifications. A female Kerry, Bush, or Obama ain’t going to get out of single digits. The country may be ready for a female POTUS but unless Frederica Delano Roosevelt falls from the sky, it won’t happen.

      • i agree hillarys the most woman in politics that why its got to be her …

        • but i do see the very very real possibility of a hillary -vs palin run in 2012 for for potus

        • Yeah, because if it’s gonna be a woman it’s got to be the absolute most qualified woman in the whole world or she’s not good enough and makes all women look bad. Kerry is fine, Jane Kerry woukd be an insulting joke. That’s the point. At any job, there are white guys who are good, bad, and indifferent, and nobody thinks twice. That’a life and we all know it. But with women or black men, either they’re the very very very best or they’re not good enough. That double standard is the problem when it comes to hiring.

          • Um, Obama is stunningly unqualified. So I’d say your argument works for women but not for black men.

          • I knew someone would say that! 🙂 IMO Obama only got a free pass because he ran against a woman and The Village is more comfortable with a black man than a woman of any race. That doesn’t mean they’re happy about it, though. I bet if Hillary hadn’t run and Obama had a chance of beating the other white guys, they would have given him the Hillary treatment.

          • 🙂 Happy to do the expected.

            I think the bottom line for Obama was he was chosen by certain powers that was then reflected by the media (or directed if tin hat is present), so I’m not sure any of these issues relate to him. I think if Hillary hadn’t been there, he still would have won. But that’s just a guess.

            The larger point has merit. I’m just messing with you.

          • Yeah, I don’t know how we started talking about the election, that doesn’t have anything to do with this really. I blame afrocity (kidding!).

            I’m not so sure he would have won without Hillary, though. I think the powers that be were looking for any alternative to her and reluctantly settled on him as the only plausible choice. I think they would have preferred Edwards or anyone else, really. Even the other Senate Dems called him a dilettante in print, there was no love for him from anyone until they started getting scared she would win. All of the emotions driving this were anti-her, not pro-him, which is understandable since he is an empty suit. Starting out being anti-hill and watching the whole thing play out, my sense was any generic male non-Clinton would do, we weren’t fussy. Even if he was far worse on everything we held against her.

          • Good point. You may be right about that.

          • Wasn’t it Maxine Waters who said that most of the discrimination that she had felt was due to gender rather vthan race?

  24. Thanks, myiq. Wish I had seen this before a reporter called to ask about this case… I’m not teaching employment discrimination next semester, so I thought hey, I can just read it later. : (

  25. Off-topic, although it does involve the Supreme Court:

    The Supremes have agreed to hear Troy Davis’s case when the Court reconvenes in September. In case his conviction is NOT overturned, here’s a link to the office of the new DA in Savannah, GA, to request reopening his case.


  26. the world is changeing just look i might be wrong but just about every country in the west has had a female head of state . except the USA

  27. With Obama, his trump card with the Village was neither race or gender, as much as it was class. ( as in ruling class) And I think he was in the pipe line for years…since Columbia. He was no fall back , plan b candidate . Too much was in place for that..imo

    • Well, he’s certainly not poor, but he’s not a Forbes, either. Couldn’t they find a zillion other ivy leaguers with better ruling class cred? What’s so special about him?

      • I’m not saying you’re wrong (what the hell do I know), I guess I just see so little to be impressed with in Obama that would attract anyone’s interest.

  28. Bravo Myiq;

    This was by far your best post and the most useful. This is a real TC instant classic (No, your Carrie Prejean and Palin

    Finally somebody who took the time to read the SCOTUS decision, took the time to understand the historical context and explained the whole thing in layman’s terms.

    Many people tried to demagogue Ricci v DeStefano into an affirmative action case, which it was clearly not.

    Too bad I missed the whole discussion about affirmative action, because Afrocity most notably was making very specious arguments against it or fighting against the caricature of affirmative action, which the most disingenuous way to discuss any issue.
    Just a reminder Afrocity, Affirmative Action doesn’t mean the most unqualified and uneducated black person should be given a job instead a totally qualified white person; No serious person has ever made that case, you taking on a straw man.

    Moreover, there are people, especially among Rightwingers who oppose affirmative action because they think Blacks are getting away with something or they are living off of freebies taken away from Whites. Believe me, we are not getting away with anything.

    There are a lot of merits to Affirmative Action and we can discuss them at a given point, but keep in mind that it is not there to advance undeserving Blacks and it has never been.

    One more important thing:

    1- The election of Barack Obama WAS NOT about Affirmative Action. It’s not like Blacks never ran for POTUS before and I don’t think there will be another black POTUS soon because it’s hard to have all the luck and timing Obama had. It’s not that Whites will suddenly hate us because they gave a POTUS already.

    2- Elections are NEVER based on meritocracy, NEVER EVER. Some of us actually wish it were the case but after taking gallons of deep breath since the 2008, I had to remind myself that one is can vote for a candidate out of purely subjective reasons and there’s nothing wrong with that.

    Nobody has to right white papers to explain his vote and that’s OK.
    As a black man who supported Hillary, I actually wished women had voted for her just because she’s a woman. It would have helped my candidate.

    I supported her because I think she’s smart, a very serious policy wonk, more Liberal than people give her credit, unfairly maligned and at the end, I knew a Hillary victory would make Rightwing freaks and some pseudo “progressives” go berserk, something I like to watch. But those were MY reason and I can’t demand that to be the standard.

    Myiq, you should at least have a paragraph of the dissenting opinion. Ruth Bader Ginsburg made some very good points about the historical context.
    As for what the decision tell us about the SCOTUS, I find this piece from SCOTUSBlog excellent.

    • Oops!

      I screwed up my italics because I was on the phone.

      I was saying none of the Carrie Prejean and Sarah Palin posts made the cut to the Smithsonian.

  29. FYI, here is what test developers and I/O specialists (such as IOS in this case) and employers rely upon when developing testing materials to avoid “disparate impact.”
    The Uniform Guidelines on Employee Selection Procedures.
    These guidelines were developed by the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Civil Service Commission, which sets forth the procedures for avoiding disparate impact in testing procedures, specifically in sections 3 and 4:
    From Section 4.D

    D. Adverse impact and the “four-fifths rule.”

    A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact. Smaller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms or where a user’s actions have discouraged applicants disproportionately on grounds of race, sex, or ethnic group. Greater differences in selection rate may not constitute adverse impact where the differences are based on small numbers and are not statistically significant, or where special recruiting or other programs cause the pool of minority or female candidates to be atypical of the normal pool of applicants from that group. Where the user’s evidence concerning the impact of a selection procedure indicates adverse impact but is based upon numbers which are too small to be reliable, evidence concerning the impact of the procedure over a longer period of time and/or evidence concerning the impact which the selection procedure had when used in the same manner in similar circumstances elsewhere may be considered in determining adverse impact. Where the user has not maintained data on adverse impact as required by the documentation section of applicable guidelines, the Federal enforcement agencies may draw an inference of adverse impact of the selection process from the failure of the user to maintain such data, if the user has an underutilization of a group in the job category, as compared to the group’s representation in the relevant labor market or, in the case of jobs filled from within, the applicable work force.(my emphasis)

    These regs have their basis in Title VII above which myiq outlined and the “4/5ths” rule, Section 4.D, was not met in the Ricci case so the employer went with what they saw as the safer bet since either group would have filed a discrimination charge. That’s my take and appears to be consistent with myiq’s legal analysis.

    • I left that out cuz I didn’t want to explain it.

      The test results were well below the 4/5 rule threshold, but the court said that alone did not constitute a “strong basis in evidence”

      • I had asked above — do you see this decision as disturbing that rule in any way?

      • also, my understanding is that when the 4/5ths rule is not met, the employer has a second hurdle and must establish that there were no suitable alternatives. I believe they mentioned that this second hurdle was not met.

        Is that correct?

        • Correct

          • Spot on SOD.

            People want to jump on anything to fight their concept of what Affirmative Action. I noticed that many people know the caricature of Affirmative Action and they go about fighting it.

            The SCOTUS didn’t even overturn Title VII but they disagreed with it’s application here.

          • Scalia says in his concurring opinion that he wants to go into the Equal Protection aspect of Title VII – he probably wants to find “disparate impact” unconstitutional.

            But they rest of the court didn’t want to go there.

          • thanks. That’s why I’m really glad you broke this down. It’s just not this big “Affirmative Action” issue that people are trying to make it out to be. It’s (right or wrongly decided) just an interpretation of what’s out there. IMHO

          • Scalia! 👿

    • Ha! I would do a post on it but everyone would fall asleep.

      Blah blah blah validity blah blah blah correlations blah blah blah

      • What I think is a key point is that the city bent over backwards to come up with a fair and racially neutral test. I think the outcome could have been different if they had used some generic standardized test.

        What’s interesting is there has never been an independent analysis of the test they used. What if that same test was given to similarly situated firefighters in other cities?

        Would it yield the same racially disparate results or not?

        • It also appeared that the test had some very site-specific components because IOS testified that they used interviews and shadowing to assess job requirements. They also provided the candidates with study materials.

          I could give a better analysis of the materials if I had them in front of me but all I have is the case testimony.

          • A challenge to one of two questions could be resolved without throwing out the entire test – IIRC IOS gave credit for all answers on one of two questions.

        • I thought IOS testified that the same test was used in other cities and one of the AA’s arguments, pre complaint was that some of the material was not relevant to New Haven.

          • That test was unique, it was made specifically for New Haven. (there is a lot of discussion in the decision, the concurrence and the dissent about the test.)

            The decision also held that any attempt to recalculate the scores afterward would essentially be the same as throwing the test out.

  30. I guess I didn’t say this explicitly – Title VII is NOT Affirmative Action.

    Title VII deals with discrimination.

    New Haven was trying to come up with a promotion exam that did not discriminate – intentionally or unintentionally.

    They were trying to create a level playing field for everyone.

  31. You’re right. The IOS testimony concerning the complaints that the material was not relevant was not that they used material from other cities, but that they’ve done similar tests for other cities.

    Other firefighters spoke against certifying the test results. They described the test questions as outdated or not relevant to firefighting practices in New Haven. GaryTinney stated that source materials “came out of New York. . . . Their makeup of their city and everything istotally different than ours.” Id., at A774–A775; see also id., at A779, A780–A781. And they criticized the test materials, a full set of which cost about $500, for being too expensive and too long.


    At a third meeting, on February 11, Legel addressed the CSB on behalf of IOS. Legel stated that IOS had previously prepared entry-level firefighter examinations for the City but not a promotional examination. He explained that IOS had developed examinations for departments incommunities with demographics similar to New Haven’s,including Orange County, Florida; Lansing, Michigan; and San Jose, California.

    and that IOS developed the test specifically to fit New Haven, even oversampling minorities:

    (as you noted above)

    In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates.

  32. Great summary, myiq. As I understand what you’ve synthesized, the majority opinion on this case was that employers can only throw out test results if they think they will be sued AND they think they will lose the lawsuit. In our overly litigious society, there’s no dearth of frivolous lawsuits, so I can understand why the justices might determine that just the fear of being sued isn’t enough. The AND part of the ruling is a bit curious in its expression of the concept I think they’re trying to get across. It sounds to me as though the Supremes are saying, Look, if you design a potentially discriminatory test and the test results prove your concerns were correct, then you can throw out the results.

    In the case of New Haven, it sounds like they bent over backwards not only to design a fair test but also to administer the test fairly. If two out of three examiners were professional black firefighters from other communities, I wonder if it might have been a case of being tougher on your own once you’ve made it. As a woman, I admit that in the early days of equal rights, I would have voted for another woman just to help her get ahead. Now that the pool of potential candidates has become larger, I’m more likely to look at credentials and record and not just gender.

  33. Oh and thanks for the ‘earworm’ on Rikki Don’t Lose that Number myiq. ack!

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