Racist Thinking at the Supreme Court—Again

Well, our least democratic major political institution, the Supreme Court, ruled today in a 5-4 RICCI ET AL. v. DESTEFANO ET AL decision that white men had been the victims of racial discrimination under Title VII of the 1964 Civil Rights Act. Written by conservative Justice Anthony Kennedy, and joined in by the court’s far-right justices Roberts, Scalia, Thomas, and Alito (damaging gifts of the Ford, Reagan, and Bush administrations), the overview summary starts thus:HONKING HORN OF JUSTICE FOR NEW JERSEY FIREFIGHTERS--BEEP BEEP
Creative Commons License photo credit: roberthuffstutter

New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. . . The City’s action in discarding the tests violated Title VII.

That is, they discriminated against the white men who took the test, and would under the city’s decision have to take a new, presumably less discriminatory test. Actually, no one was discriminated against in actual promotions, as the city did not promote anyone, white, black or Latino. The city decided that because no African Americans scored high enough to be in the top promotion pool the tests needed to be replaced by better more-ability-based testing. However, the five racial conservatives on the court argue that in the record there is no “equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.” They, of course, are wrong on the social science evidence.

In her dissent, however, Justice R. B. Ginsburg (joined by Souter, Breyer, and Stevens) not only took the unusual step of giving her dissent orally in court but argued effectively (perhaps because she knows how discrimination actually works?) against the majority decision, running rings around them. She gives a rather sociological dissent starting with this opening line:

In assessing claims of race discrimination, “context matters.” [Grutter v. Bollinger, 539 U. S. 306, 327 (2003).] In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.

That is, there is this little matter of systemic racism. The majority justices completely ignore the 346-year history of slavery and Jim Crow segregation, which has been followed by much successful foot-dragging for four decades now in regard to undoing deep structures of white privilege, but the majority want to ignore that systemic-racism reality and its continuing impact.

One powerful argument that Ginsburg makes is that New Haven’s population is now a majority of people of color, yet the city has disproportionately few fire department officers who are black and Latino. She notes other (some nearby) cities that do not depend on New Haven’s discriminatory testing and thus get a more diverse workforce:

The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes. By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.

The right-wing majority leaves out other important systemic and historical facts, as she notes:

Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. 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.

That is, a profession that was aggressively white-controlled until well past the 1970s, and in New Haven now has great underrepresentation of blacks and Latinos in ranks like fire captain. One problem that the media has not assessed is the makeup of the exams, with 60 percent of the testing score based on the written exam, and only 40 percent on the oral exam, which got directly at leadership and ability issues. The testing showed huge disparities:

On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. … More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. … As for the seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans.

She notes that numerous white firefighters had important social networks that helped them with the exams, including getting books and other materials quicker and cheaper than the first-generation African American and Latino firefighters. She then cites fairly extensively the testimony in the case of Dr. Christopher Hornick, an industrial psychologist with 25 years’ experience in firefighter testing. He testified that New Havens’ testing had a “relatively high adverse impact” and questioned the heavy emphasis on written over oral and related leadership exams:

We know that it’s not as valid as other procedures that exist. . . I think a person’s leadership skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way.

Ginsburg points out that the right-wing majority ignores Congress’s intent to accent both “disparate treatment” and “disparate impact” in its various civil rights laws:

Title VII’s original text, it was plain to the [1971 Griggs] Court, “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” …Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s “original, foundational prohibition,” and disparate impact a mere afterthought. …Yet the Court today sets at odds the statute’s core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”— something Title VII’s disparate-treatment provision, .. generally forbids. ..This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. …. Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today [Scalia’s concurring opinion] . . this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Title VII’s disparate-impact provision calls for a “race-neutral means to increase minority . . . participation”—something this Court’s equal protection precedents also encourage.

This is the heart of the case. She is siding with the 1971 Griggs case that argued that practices that are fair in form, but discriminatory in operation (that is, have a serious disparate impact) are in fact banned by the civil rights laws–especially if alternative procedures can be found, as is easily the case in this firefighters’ case. Bridgeport, Connecticut, is mentioned as having solved the problem with fairer testing for firefighters and getting the needed social-racial diversity–a 20-miles-nearby example. Why not New Haven?

The Supreme Court is an undemocratic institution provided to us in 1787 by some white male slaveholders and their merchant friends, and today it is heavily skewed in a right-wing direction and populated by a quite unrepresentative group of folks–not unlike the skew in the fire captain’s class in New Haven. These justices have here provided another good example of how contemporary racism works. The right-wing majority is operating out of the old white racial frame and pretending that we live in a country with little institutional discrimination, and no centuries-old history of slavery and Jim Crow. We have been an officially “free” country only since 1969, and all the justices on the court grew up under a very undemocratic country with official racial apartheid. Yet cases like this one operate to deny that recent apartheid reality and its continuing consequences in public and private employment settings.


  1. I had been waiting all day for your comments. For me, the problem – and blatant racism – in the logic that

    When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”— something Title VII’s disparate-treatment provision, .. generally forbids. ..

    is the doubling back. And I haven’t looked over fallacies of logic in a while, but isn’t “doubling back” something of a no-no? You only use that kind of logic to get the result you want. And whatever anyone may say about the racial sensitivities and sensibilities of the “Conson 5,” the “impact” of their “treatment” is racist.

  2. When our courts focus on going into the minds of employers to determine intent rather than focusing on results, or disparate impact, (ie, statistics), those affected by racism (or other forms of real discrimination) will never prevail. Systematic, unconscious discrimination IS intentional, often by omission, which is no less a sin. But it can never be proven legally by the parties adversely affected, letting all modern practioners of discrimination, that is those who commit acts against others who have been historically mistreated, off the hook to be mindless, unthoughtful and self-serving about the consequences of their actions.

    No city should be penalized for trying to do the right thing. But New Haven could have brought in a new test immediately and saved us all this current heartache and permanent damage to civil rights.

    Going unnotices is the mixed-motive decision that is equally damaging to those suffering from age discrimination. It is sad we know the outcome of these cases before they are even heard.

  3. Kristen

    Agreed. I was talking to a friend yesterday about the original suit brought on behalf of the white firefighters, and he said to me, “But you have to admit you’d be upset too if you’d spent all that time studying only to have the test results thrown out.” But I just couldn’t concede the point. Because while I’m a proponent of trying to understand and empathize with all people – even those from whom I’d honestly rather distance myself – I think we make the mistake time and again of overconsidering the feelings of members of privileged groups who “suffer” the effects of the removal of advantage. And so if I’d spent all those hours studying for a test that was later found to be problematic, couldn’t I also rationally feel relieved that they caught the mistake and refused to promote me to an all-white segregated club? And since I have the time and motivation to read and study, couldn’t I even volunteer to research better testing/evaluation procedures? So, I can only guess at my reaction, but I’m just continually disgusted that white people’s self interest is so often out of line with equality and justice for all. Why are we so comfortable with the continuation – and often increase – of racial segregation?

  4. JDF

    Good points. My question is just how much of an impact will this decision have on civil rights, and for how long. One analyst from npr said yesterday she thought this decision has little applicability to other cases, given how outdated New Haven’s test was. Still, despite Obama in the White House and Sotomayor likely to join the club this fall, we’re stuck with a pretty racially conservative group for years to come.

  5. Eskimohorn

    “The Supreme Court is an undemocratic institution provided to us in 1787 by some white male slaveholders and their merchant friends” – your analysis was undermined by this simplistic, revisionist, sulking. Why don’t throw in hemp-growing, Free Mason references? The Supreme Court has not always been just, but neither has our representative-form of government. Our constitution and seperation of powers is a horrible brand of government, but one of the best in history.

  6. Joe

    Very good discussion, thanks all. Eskimohorn your outburst provides no evidence against my quite accurate statement. Provide evidence, please. Our Supreme Court is unelected and is appointed by a president who is not directly elected, but gets in by means of the undemocratic electoral college (as the 2000 election dramatically showed). SC Judges are approved by an also undemocratic US Senate, which is elected on the basis of state lines (acreage), not people. Please explain how my statement is incorrect. The statement about this whitewashed decision is quite relevant to a US Supreme Court that has seven white men out of nine judges. That 78 percent-white-male is far from representative of the US population, which is only 32 percent white men. And yes, slaveholders were a majority of the key players at the Constitutional Convention, with our wealthiest slaveholder (Washington) chairing it, and with James Madison, major slaveholder, as the reputed “brain” behind it. They feared the “masses,” and thus gave us these quite undemocratic institutions. Numerous other countries have more democratic institutions; we just prefer not to know that.

  7. Kristen

    Eskimohorn, I for one appreciate Joe’s statement as written. He’s not saying we have the worst government in the world created by the worst people in the world, he’s just making a point that I believe needs making. I don’t think he uses those descriptors (“undemocratic,” “white male slaveholders and their merchant friends”) in order to sulk or be simple, but to encourage us to reconsider – and hopefully, as you say, revise – our view of history and historical idols. These guys were not perfect and don’t need to be used as contemporary role models as unquestioningly as they are today.

  8. Eskimohorn

    Joe, your answer lies with anlysis from President Obama, in which he indicated in his book that much of the momentum of the civil rights movement came from the judicial system. Additionally, there are ample examples in representative government (states included) that show a disregard of minority rights, by majority-elected representatives.

    Regarding the background of the Founding Fathers, the forethought many put into the system (including many abolitionist New Englanders) is astounding. The fact that many of them were slave owners or hemp growers is moot at this point, because their Constitution has held the test of time, scrutiny, civil wars and world wars.

    If you believe that a democratically-elected Supreme Court would be any better, one need point to any number of elected State Supreme Court Justices, who don’t recuse themselves in cases involving their campaign donors, who get elected solely on name value (i.e. John Q. Justice, Sam Houston, Perry Mason, etc.) and are political hacks. Imagine a Sarah Palin getting a crack at the Supreme Court based on looks and brand.

    Regarding your initial revisionist take on our Founding Fathers, I’d like to know which 18th-century government provides a better example of government that is still in tact today. Which 18th-century do-gooders did better than the Founding Fathers? I won’t defend the electoral college, but I can tell you all of the justices were approved by your elected officials and appointed by majority-approved Presidents (except between 2001-2005 in Bush’s first term).

    Your own thought process to dismiss the Senate is an interesting one, and one that could only be achieved by Revolution. I’m not sure what the alternative is, but dismissing the Senate and the Supreme Court in one bold move would be very interesting. Our government would be comprised of a President and majority-rule Congress, with democratically-elected Justice Officials? In reality, this would make it much easier for special-interests to lobby and capture our regulatory agencies and supreme court. I guess you would outlaw lobbying, which could be difficult to do without eliminating free speech provisions from our Bill of Rights.

    In reality, the Seperation of Powers has served us well, even if some people are disappointed when their political party is under-represented on the Supreme Court and then resort to dismissing our Founding Fathers, who were hardly choir boys, but created an amazing form of government from scratch.

  9. Eskimohorn

    “…by some white male slaveholders and their merchant friends”

    This position simplifies the history of the U.S. They were as a diverse group as ever to come together and compromise a new nation. To dismiss the Southerners as slaveholders and New Englanders as their “merchant friends” reeks of intellectual dishonesty and undermines all of the valid points above about the social obtuseness of the conservative bloc in the Supreme Court.

  10. @Eskimohorn – Your argument is undermined by the fact that you didn’t deal with the point of the post and commented instead on just one sentence. And while it’s true that a democracy based on ignorant and racist voters can have devastating consequences, that doesn’t really undo Joe’s point about the undemocratic-nature of the SC. Most learned people realize, even if they have to take a moment to think about it, that there’re any number of constitutional barriers to a truly representative democracy. Sometimes it’s a good thing. This wasn’t one of those times.
    @Joe – I’m not sure that was my point, but I like it nonetheless! I think I was trying to say that their “differential treatment” argument was just a cover to continue “differential results,” and the 5 judges are preserving a racist system even if they claim to have no personal racial biases. Cause, of course, I think they do. Correcting 400 years of differential treatment necessitates some level of “differential treatment.” I don’t see how anyone could reasonably think otherwise. The truth is, attempting to achieve equality without some “differential treatment” is a waste of time. And sure it feels bad to white Americans, but as Kristian pointed out, why are we privileging the feelings of white Americans over the experiences of Americans of color? Lots of people like to argue that white Americans today should have to be punished for what white Americans did in the past, but 1) they’re not really being punished at all and 2) regardless of when they got here, white Americans have benefited from slavery, neo-slavery, and racism. It’s only just that we discontinue these benefits, however “painful” that may be to white Americans. And not only discontinue the present benefits, but also recoup the accumulated benefits of the past.
    And seriously asking, this whole “disparate impact” vs “differential treatment” argument conservatives make – what is the logic and is it, or is it not, a fallacy?

  11. Eskimohorn

    Kstate – I happened to agree with much of the original criticism of the conservative SC decision. We shouldn’t throw the baby out with the bathwater, just because we disagree with the current conservative bloc. A conservative bloc that took decades of voter support and apathy alike to create since the Ford era. I just don’t see how eliminating checks and balances will protect minority interests. These protections were put in place to protect minority groups and the SC and (despite some ignominious decisions) the judicial system has done quite a bit to protect minorities (including racial minorities). That’s U.S Government 101.

  12. Joe

    No1K, I think we are on the same wave length. I agree that you cannot undo 400 years of extreme oppression without redistributing the unjust enrichments, of many kinds, that whites have gained from all those year of oppression–including continuing widespread discrimination.

    Eskimohorn, you have not countered any part of my assertions about the undemocratic nature of the Supreme Court, the slaveholders and slavery-related merchants (and others) who gave it to us, or its highly unrepresentative character. These are simply facts, not revisionism. I have a number of law journal articles backing this up with lots of data, and there is plenty in my book, Systemic Racism. The data are there to back up the statements.

    The arguments you make about alternatives are interesting, but do not relate directly to my statements of fact.

    More generally, our system is highly undemocratic in a great many demonstrable ways, including the fact that in our long history about 96 percent of the 110 or so Supreme Court justices have been white men, virtually all from the upper classes. 78 percent of the Court is now white men, in a country that is about 32 percent white male.

    If you want to get into the other subjects of possible, more democratic alternatives (which I do not raise here in my post), take a look at numerous European countries, with their much more representative parliaments for example. We have a senate in contrast whose poorest member comes from a family making about $260,000 yearly. About 97 percent of the US population is, thus, not represented by anyone like them, in that highly undemocratic body.

  13. The other thing that really bothers me about this decision is that it’s not terribly hard to create some “race-neutral” standard that will keep black people out. And should something like that happen, a person has “plausable deniability.” And I’m not sure what the majority said in regard to that specific circumstance, but I do think a person has to be not-so-bright not to realize that can happen. And as we were told, Roberts and Alito are exceptionally bright. Additionally, I could be wrong, but it definitely appears to me that if I were able to construct some “race neutral” standard that disadvantaged whites, like applicants to my “elite, feeder” high school must be profecient in the grammer of at least 2 American versions of English, would that be okay?

  14. Randy

    RICCI ET AL. v. DESTEFANO ET AL……. Epic Fail!

    When I look at court decisions, I always look at two things: Who was harmed? & What precedence is now set by this ruling. I am not convinced that those who passed the exam were harmed and that their race was inconsequential. The city did not hire anyone, White, Black, or Latino. How could they have been discriminated against if no one was rewarded by their test grade? If only the White and a few Hispanic test takers passed the exam, than I would begin to wonder a few different things. Did someone cheat or have an unfair advantage? If half of my applicants failed the exam, I would also immediately take a look at the training programs within my department to see if more exhaustive training should be provided to my firefighters. If a company, even a firefighting unit, is not developing its employees to work at levels higher than the one they are currently in, how does that company expect to maintain its competitive edge?

    So what precedence will this court case set for future racism cases? I believe it effectively ended the concept of “White Privilege” from being used effectively in future courtrooms and created the concept of reverse discrimination. It also created a justification for the ending of federally back affirmative action regulations that have help, to some degree, close the gap between white and people of color. I expect more cases of this type to be coming to the forefront in the near future. Welcome to post-racial America, we have arrived…….Not!

  15. siss

    Didn’t NHFD nix the exam because of litigious fears and how it might “look” to others, rather than discarding them because they truly believed the scores were skewed?

    I haven’t kept up with this case, so I could be wrong. However, this seems like a “cover-your-ass” move, rather than an a serious complaint against alleged testing discrimination.

  16. Of course they discarded it because of how it might “look.” But there are better tests, making this one problematic. Like Randy said, none of the firefighters were harmed; it’s not like NHFD hired the black applicants who had failed. Plus, all the factors Ginsburg brought up. This was a just a case of white men and Thomas preserving white privilege. Period.

  17. Kristen

    Randy, I too have big worries about the precedent being set, and what becomes paramount is how employers/institutions interpret what they should and should not do. I think one lesson a great many people will take away from the Ricci case is that it’s acceptable to promote non-representative leadership. I really appreciated the astuteness of Ginsburg’s dissension, but the majority opinion reflects the much stronger existing sentiment in our country, that standardized tests are inherently valid, and if they happen to help keep African Americans on the bottom rung, then so be it.
    I agree with you – and epic fail indeed.

  18. siss

    Until the test documents are produced, we dont know just HOW or IF the test was flawed. Just because too many white males passed the exam and that would “look bad” isn’t cause for invalidation.

    The harm was absence of promotion = no pay raise.

  19. distance88

    I have read that some of the firefighters spent upwards of $1000 on materials/books in prepping for the test–which is a lot of money to a lot of people. The cost-prohibitive nature of preparing for and taking a standardized test like this (or others–SATs, MCATs, LSATs) indicates that the results aren’t based entirely (some, perhaps) on merit–they are more a function of the ability to afford particular resources.

  20. @siss – Yes, we do know the test is flawed. Other towns you better tests that have better results. Plus, this was just a two part test – multiple choice and oral. And multiple choice was waited. The test was flawed. We have evidence that the test was flawed.
    Also, siss, you seem to be taking the mainstream view that, as Kristen points out, any standardized test is valid. But we know that’s just not the case!
    Take the SATs for example. They always put in “test” questions for future exams that don’t count for or against the student. The results show that there are some questions that black students answered correctly at a higher rate and some questions that white students answer at a higher rate. In deciding which questions to use, they SAT-makers use the questions that fit the correct-answer rate of past tests. Since in past tests, white students answer more questions more correctly, the “test” questions that the black students do well on are thrown out. Subsequently, you have a test that’s “standardized” that’s obviously create to benefit white students and so is flawed.
    And that’s but one example of the flawed nature of just any general “standardized” test.
    And a more personal question, siss, cause I’m curious. Do you consider yourself to be anti-racist (activist) and what does it mean to you to be an anti racist (activist)? How do you define racism? What standards do you have in order to label some action/quote/decision/law/ect racist? What problems do you see in the status quo of racial issues? How would you go about addressing these problems? Etc and so on, I hope you get my point. Admittedly, you and I do at times come out on different sides, or just varying positions, of an issue. But, I really don’t want to think you’re an apologist for racism. So I would like to, if you don’t mind, get some sense of where you come down on issues of racial justice. Of course, we may set the bar for “racism” at different levels, or perhaps, different places. But I don’t want to prejudge, as it were, the situation.

  21. Kristen

    I don’t think making test-prep materials more affordable would be a solution. There are much bigger issues at play as to the city of New Haven’s decision to weight a standardized test so heavily when trying to fill leadership positions. Would anyone really argue that a standard multiple-choice test is the best – or even a viable – way to evaluate a person’s ability to lead others, to stay calm in stressful situations, etc.? Legal scholar Kimberly West-Faulcon (Loyala Law School, Los Angeles) makes some important points:

    First, the city did not have a good scientific basis for the amount of weight it placed on the multiple-choice test – 60 percent of a firefighter’s rank on the list. In a neighboring city, Brigdeport, Conn., the fire department only gave the multiple-choice test a 30 percent weighting.

    Second, using the lieutenant list as an example, we cannot be certain that the top-10 firefighters (all of whom were white) were more qualified than the top-15 firefighters (two of whom were African American) because the company that made the New Haven firefighter test has admitted that the exam does not measure important skills for the job in question. In fact, it is undisputed that the New Haven firefighter exam was not designed to measure command performance or supervisory skills.

    As explained in the Supreme Court brief filed by the employment testing experts, one of the important qualities distinguishing a good fire officer from a good entry-level firefighter is that supervisory officers must have a “steady presence of command so that the unit will follow orders and respond correctly to fire conditions.” Firefighters need “command presence” in order to lead their command units in safely and effectively fighting fires.

    Finally, New Haven had reason to believe it might lose a lawsuit filed by minority firefighters because there were less racially discriminatory tests available to identify the firefighters most qualified for promotion. For instance, employment testing experts have found that “assessment centers” – facilities that test firefighters using standardized job-simulation exercises – do a better job than multiple-choice tests of weeding out firefighters who are “book smart, but street dumb.” These centers compare entry-level firefighters based on their ability to do real-world tasks that are typically performed by a firefighter “on the job” instead of comparing how well they answer questions about firefighting on a pencil-and-paper multiple-choice test. In fact, there is every reason to believe that the firefighters who filed the Ricci lawsuit would not have ranked in the same position on the list had New Haven evaluated firefighters at an assessment center. In addition to resulting in fewer racial differences in test scores, research shows that the white firefighters who perform best on multiple-choice tests do not always fare as well on tests at assessment centers that simulate real-world firefighting tasks. In other words, using test scores from assessment centers leads both to the promotion of greater numbers of minority firefighters and results in the promotion of different, more qualified white firefighters.

    Thus, there is a strong argument that promoting firefighters based on their performance on job simulations increases more than racial diversity in the upper ranks of fire departments. It increases public safety. In most cases challenging standardized testing, the issue is whether test scores were used properly. Here, instead of claiming that the city used a test improperly, firefighters are suing a city for putting a stop to its own improper use of a standardized test. Even in our increasingly test-centered society, this is a striking claim. The city was right to put a halt on promotions because there is no proof that those at the top of the list were more qualified than those firefighters ranked just below them.

  22. Kristen

    siss, I’m sorry, did I miss where you got to the clarifying part? I can work with a metaphorical expression, if used creatively and clearly, but your statement just seems dismissive.

  23. siss

    It looks as though the NHFD backtracked -Provided an exam, didnt like the results and yanked the scores. It was their fault for not correcting the exam (which was needed as some claim), and implementing a fairer version. You cannot punish the test takers – which is what they did by denying promotions. In all of this hoop-lah has anyone heard what is to become of this decision? What exactly does it mean in terms of hiring? Thats what i was getting at.

  24. In terms of hiring, it means companies can use discriminatory tests and deny applicants of color jobs and promotions.
    It’s not “punishment” not to be promoted when NOBODY was promoted. But that’s the problematic thinking on the court. In the course of ensuring racial justice, some white people may be denied certain things they thought they were entitled to. That’s not “punishment.” That’s justice. We’re not going to achieve a society of racial equality if we’re always worried about white people being “punished.”

  25. Jordan

    The other cities got more representative results because they “race normed” the results of their tests i.e. used different curves for different groups. They didn’t have a test that produced representative results without statistical tweaking.

    Also, any weighting is arbitrary. Making it 50% written, 50% verbal isn’t inherently fairer or better than any other weighting. In fact, weighting the verbal heavier allows all kinds of bias in whereas you can at least try to keep it out with the written.

    The decision was a lot narrower than I was afraid of. It’s clear that Thomas and Alito want to scrap affirmative action/”racial preferences” altogether but thank god, Keneddy is somewhat reasonable.

  26. I haven’t gone through the 30 responses so far, but I have glanced at a couple of them. It’s pretty difficult to know how a test could be biased against a minority. People just haven’t gone into those details at all it seems. I didn’t have a clue as to how it could happen until I stumbled on comment #22. If something like this were to happen, then OF COURSE it’s flawed and racially biased, but at this point, I still don’t know.

    But does anyone? Even if something like the SAT scenario were to take place, how would you even know it is taking place? Does the lack of success by black people automatically mean that the test was flawed? Were there other factors that we should know about? Sorry for my ignorance; I am not sure that I have ever taken such a test in my life.

    The Supreme Court made it clear that had the city done its job and justified it actions, the decision would have come down in their favour, therefore you might say that the result is the direct result of the city’s mishandling of the affair, rather than the racism of the SC. This means that it is the city, and not the SC that dealt a blow to the gains won by PoC.

    Another thing that I don’t understand is why black people should score lower than others when there is a significant written portion of a test. Does this mean that black people dont rite gud? If New Haven wants firefighters with better written skills, why does this adversely affect black firefighters?

    Once again, it’s late, I haven’t done a lot of research and I am tired. Sorry about my ignorance.

  27. jamal

    “In terms of hiring, it means companies can use discriminatory tests and deny applicants of color jobs and promotions.”

    Any test that measures mental aptitude will “discriminate” against blacks. Any test that measures height will “discriminate” against asians. These are just genetic realities. The more we deny this, the deeper the hole we dig for ourselves.

  28. Kristen

    jamal, your assertion about “genetic realities” is untrue. You might get away with that statement 100 years ago. Phenotype does not correlate with brain power. And, standardized tests do not measure innate ability but rather accumulated skills.

  29. You know, it’s funny. We’ve never actually, as a country, accepted that each individual is equal regardless of race, gender, sexual orientation, religion, lack of religion, etc. It’s interesting to get comments from people like jamal contending that the problem is this idea of innate equality and not socio-polical and economic inequality.

  30. Day late, dollar short, yes. But was anyone else aware of this? And am I the only who’s suddenly suspicous about exactly who’s playing identity politics and to what end? Okay, so I’ve thought the 4 faithful conservatives are (overt?) racist for several months now. But I wasn’t aware of this statement by Scalia, which seems especially significant in light of the Sotomayor “wise Latina” bwuhaha.

    Justice Antonin Scalia said at oral argument that he didn’t believe New Haven would have canceled the test results if they’d yielded no white promotions.



  1. Monday Blogaround « The Gender Blender Blog

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