by hilzoy
One of the criticisms of Sonia Sotomayor is that she was part of a panel that affirmed a district court ruling in Ricci v. DeStefano. Here are the basics of the case:
"In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination."
I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn't get his promotion, rather than what the law requires. This puzzled me. Many of the same people who are outraged by the decision also criticize Judge Sotomayor on the grounds that she will substitute her personal preferences for the requirements of the law as written. One might therefore expect them to consider what the law required in this case, rather than simply asking whether the outcome she affirmed was the one they preferred. Oddly enough, however, they didn't.
So I decided to read the case for myself. As best I can tell, the argument in the district court ruling, which the Second Circuit accepts, is as follows:
Ricci and his fellow plaintiffs allege that New Haven's decision to throw out the test was an act of intentional discrimination that violates Title VII of the Civil Rights Act. To prove this allegation, the plaintiffs must first show that there is a prima facie case that they were discriminated against. Next, the defendants can argue that despite this prima facie case, they had a legitimate reason for doing what they did. If they cannot do so, the plaintiffs win; if they can, we move on to step three: the plaintiffs can argue that this supposed reason is a mere pretext disguising discriminatory intent. If they succeed, they win; if not, they don't.
The District Court found that the plaintiffs had established their prima facie case. However, they also found that New Haven had a legitimate reason for acting as it did: wanting to comply with the very same Title VII under which they are being sued. And they found that this reason was not, as the plaintiffs alleged, a mere pretext. Thus, they found for New Haven.
A lot turns on their finding that New Haven had a legitimate reason for throwing out the test. Here, the central points seem to be as follows: first, New Haven's concern about violating Title VII was not just an idle worry. Title VII requires employers not just to inspect their hearts and not find any discriminatory intent, but to consider the racial impact of things like tests. And the EEOC, in interpreting this requirement, has given clear guidance about what impact counts as suspect:
"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."
The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law.
There are various things an employer can do to show that a test that has a disparate impact on some racial group is nonetheless OK. New Haven did not do any of these things, though it does seem to have spent a fair amount of time trying to figure out what accounted for the disparate impact, without success. But the steps New Haven did not take are not required: to get on the right side of the law, you can either take those steps or avoid the disparate impact by scrapping the measure that produces it — unless, of course, scrapping that measure is itself a violation of Title VII.
The plaintiffs argued that scrapping the tests was a violation of Title VII. The Court disagreed. Here again, though, they didn't pull this conclusion out of thin air. This question is governed by precedents, which the District Court discusses on pp. 31-40. I read one of them (Bushey v. New York State Civil Service Commission), and it is very much on point; I'm not a lawyer, but I think that the court would have had to overturn it in order to decide this case differently. Their basic point, as summarized by the Second Circuit, is this:
"These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability."
Scrapping the test was race-conscious: the point was to avoid running afoul of Title VII by having a test that so few blacks and Hispanics passed. But it was facially neutral: New Haven did not require that whites pass the test but waive those requirements for blacks, or anything like that; they cancelled the whole test, for everyone. You might wonder whether this really counts as neutral, but the precedents seem pretty clear to me: in Bushey, the action the court said was OK was race-norming their exams (i.e., setting up different curves for different races, so that each race had about the same percentage of people passing.) It's hard to see how one could say that that's not discrimination, but scrapping an exam in order to come up with a new one is.
A District Court cannot overturn a previous appellate court decision, but an appellate court can. The Second Circuit could have overturned its own precedents had it seen fit. They did not, for reasons that they explain here.
The basic point of all this is: both the District Court and the Second Circuit seem to me to have been applying the law in accordance with clear precedents. This is what judges are supposed to do. And anyone who thinks that this decision (made by this court) is problematic should not go on to criticize Judge Sotomayor for judicial activism, since no one who genuinely thought there was a problem with substituting one's own views about what the law ought to be for what it actually says would object to this decision.
hilzoy,
Surely you are aware that wingnuts consider judges who uphold a law wingnuts believe unconstitutional are nothing but crazed liberal zealots and screaming judicial activists. So when true right wing radicals like Scalia undermine the law with right wing judicial activism, they are actually returning our beloved nation to its true essential roots as divined (by the elect) through the leap of faith called ‘original intent’, and anything promoting this agenda is viewed positively. And thus the ends do actually justify the means, as any twit knows.
This cannot be broadcast overly much insofar as original intent may depart in some respects from the application of brute judicial force, but this is neatly elided by the necessity (cf Bush v. Gore) of the will to triumph.
I liked Ezra Klein’s formulation:
Question: Was the New Haven exam consistently getting such skewed results, or was that a one-off event, an outlier?
Or is there a new test every year? A relevant question…
Good point Hilzoy
Occasionally, someone makes a case against a candidate for appointment on account of what they have actually done or not done. But in a really depressing number of cases, where the cases against start is with the assumption that the candidate is unacceptable.
Any action or inaction which is presented is therefore spun to achieve that conclusion. Minor details, like what actually happened, let alone why, are simply ignored as irrelevant. Which, of course, they are — because the purpose is not to evaluate the candidates suitability for office, but rather to achieve a pre-ordained conclusion. As in the matter of Ricci.
One point that does disturb me about the Ricci case is the way in which the original panel (which included Sotomayor) appeared to try to bury the decision by issuing a summary affirmance based on the reasoning of the district court’s opinion. Such affirmances are by no means uncommon in general, but for this specific case with these issues, it was very, very odd. One can ascribe nefarious motives to the panel, but I think they just wanted to dodge a really tough issue and a really tough case. Understandable but not really the right thing to do. This is what pissed off Judge Cabranes (a moderate-conservative Clinton appointee), and he went out of his way not to express his views of the merits, only to strongly criticize the panel for their handling of the decision.
Of course, bottom line is that Hilzoy is right on the merits — the case was almost certainly correctly decided on the basis of Second Circuit law. The Supremes are now considering it. My above point is a little inside-baseball. I think Publius would agree with me here though.
And that is why I left the Federalist Society after law school. It became more and more obvious that the people who insisted on ‘judicial restraint’ did so at a time when ‘restraint’ led to the results they wanted. When ‘restraint’ started to lead to decisions that were legally correct but anathema to conservatives, all of a sudden these same people started bending themselves into pretzels to explain why those decisions were nonetheless “activist” and wrong.
I mean is anyone actually surprised by the apparent hypocrisy at work in the Ricci-based objections?
Apparently New Haven had a legal leg to stand on, though perhaps not two. (It was their choice not to lift a finger to defend the test, after all.) But you’ve really damned Title VII in the process of establishing that: It really IS designed to encourage racial quota systems, isn’t it?
There are so many factual issues screaming out of this case that it was highly improvident for the District Court to grant summary judgment. This case should have gone to a jury. (This doesn’t mean that the firefighters should win, only that the Court shouldn’t have entered judgment without a trial.) I expect the Supreme Court to vacate and remand with exactly those instructions.
The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law.
Not correct. They are presumptively in violation of the EEOC’s view of the law — not the same thing.
“It really IS designed to encourage racial quota systems, isn’t it?”
I wonder about that. I assume that the “money quote” for this idea would have to be the guideline stating that
“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”
Thinking about this in statistical terms, it strikes me that a difference of 20% in observed success rates may or may not be something to get worked up about. It probably depends on how many observations you’re working with, and what the base rates of success are. If 100 of 500 people in group A passes the test, while only 1 of 10 people in group B did, you’d run afoul of the guidelines (100% difference rather than 80%) without having any strong statistical evidence that the instrument is differentially difficult for the two groups.
But it also strikes me that, even if the regulators rewrote the rules to do the statistics better, the question of whether it’s “designed to encourage racial quotas” depends on whether you think it’s more likely that (a) there is an underlying group difference in competence at task X or (b) there is a weakness in the instrument used to *measure* competence at task X. If you think the first is more likely, then yeah, I can see how it would look like an explicit quota system. If you think the second is more likely, it looks like more a (somewhat half-arsed) method for detecting badly designed test instruments. FWIW I would think that the second kind of error is more frequent in real life, but YMMV I guess.
Either way, it strikes me that the purpose of Title VII (whatever that is — sorry, foreigner!) entirely besides the point, isn’t it? Sotomayor correctly applied the law even though it must have been such a miserably hard case in which to do so, and that’s what matters from the point of view of hilzoy’s post. I would have thought. Or am I missing the point of the OP?
Brett, surely you don’t actually believe that “not defending a test that failed every single black person” = “quota system in hiring.” I sure hope your gender and race don’t factor into your opinions on that kind of thing. James Inhofe would never vote to confirm you for the SC if they do.
As to the issue hilzoy was addressing, in this case, Sotomayor sided with the majority, who found that the District Court correctly applied existing law. She didn’t write an opinion. Most of the other judges on the Second Circuit agreed with her. Disagree if you will, but there’s simply no way to pretend that this was anything close to outside the mainstream.
Also note that the plaintiffs in this case were “seventeen whites and one Hispanic.” So Sotomayor, in the fantasy world that is right wing thought, fails to show empathy for Hispanics in Ricci because she empathizes with blacks. Or something. God forbid they mention, or examine, what the law actually said in the case.
Her vote with the majority in a Title VII case, and her perfectly innocuous comment in a speech ten years ago, are all that conservatives are barking their heads off about. There’s absolutely nothing to either pout. They’re upset because they believe in nothing but identity politics, and a non-white president appointed a non-white SC nominee. There is no other reason.
sigh: 100/500 vs 1/10 implies that low group is *50%* of high group, which breaks the guidelines (ignore the “100% vs 80%” rubbish – clearly I was on drugs).
Hilzoy: “I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn’t get his promotion, rather than what the law requires.”
I’ve seen some of that, and I think your analysis applies in a lot of cases (the hypocracy charge, but I’ve also seen this:
http://bench.nationalreview.com/post/?q=MDM0YWM4ZDI1NGIxNTc2MzhiMmRmZDcyNDFiZWI0YmE=
In his dissent from denial of rehearing en banc in Ricci, Judge Cabranes (joined by five other judges) states that the case “raises important questions of first impression in our Circuit—and indeed, in the nation—regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices.” He calls the district court’s opinion (which Sotomayor and her panel colleagues adopted wholesale) “path-breaking” and the questions on appeal “indisputably complex and far from well-settled.” He declares that the “core issue presented by this case—the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants—is not addressed by any precedent of the Supreme Court or our Circuit.”
Further, in its brief in the pending Supreme Court case, President Obama’s Department of Justice argues that the unsigned per curiam opinion that Sotomayor joined—and, given her aggressive lead role at oral argument, probably authored—did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.” On that ground, the Department of Justice argues that the Supreme Court “should vacate the judgment below and remand for further consideration.”
It’s true that the unpublished district-court opinion that Sotomayor and her panel colleagues adopted relies heavily on Hayden and Bushey and rejects plaintiffs’ various grounds for distinguishing those cases. It’s also true that Sotomayor and several of her colleagues, in an opinion concurring in the denial of rehearing en banc, maintain (contrary to Judge Cabranes and the five judges who joined his opinion) that Hayden and Bushey were “controlling authority.” But apart from the fact that neither Hayden and Bushey involved a government entity’s discarding the results of promotional exams, the position of Sotomayor and her colleagues depends on their assertion that “there was no evidence of a discriminatory purpose” in the City of New Haven’s discarding the results—the very assertion that the Obama Justice Department disputes.
I mean is anyone actually surprised by the apparent hypocrisy at work in the Ricci-based objections?
not necessarily surprised, but enlightened.
watching the GOP machine these last five months has been a revelation. i suspected it before, but it’s now perfectly clear to me: politics is partisanship; all political speech is rhetorical, and 90% of it is literally nonsense.
the GOP is stroking its base right now. there’s no election, so they can pretend to be everything the base wants them to be (the Dems might take a lesson); they are free to say and do outrageous things so long as it keeps the base happy enough to keep the dollars flowing. and so it’s a hedonistic party of rhetorical excess in GOPLand. they’re drunk on homebrewed outrage and high on homegrown facts. now’s not the time for sober analysis.
People invoke the sanctity of precedent when it works for their argument. When it does not…they argue against precedent. This has been going on forever. Or at least 300 years. People that say ‘judges always should follow precedent’ are therefore, in my opinion, either uninformed. Or disingenuous. Or both.
A strictly insider question for the lawyers out there…..Ricci was an “unpublished opinion” I believe. I wonder how many times an “unpublished opinion” has been granted cert?
“Brett, surely you don’t actually believe that “not defending a test that failed every single black person” = “quota system in hiring.””
What I believe is that rejecting the results of a test solely because they didn’t produce the numerical results you want, without reason to believe there’s something wrong with the test, IS a quota system. What I believe is that affirmative action based hiring corrupts, because at every stage you are forced to avoid merit in order to avoid making the original departure from merit evident.
It’s a quote a system if you’re determined to achieve the numbers, come hell or high water, regardless of how you have to fudge things to do it.
Even assuming that the black candidates were statistically indistinguishable from the rest of the candidate pool, the odds of violating that presumptive rule entirely at random are actually fairly high, given lots and lots of small samples. And 118 candidates was a small sample.
And thanks to affirmative action in hiring, there’s every chance they weren’t statistically indistinguishable from the rest of the candidate pool, and all the merit based promotional test was guilty of, was revealing that New Haven had a heavy racial thumb on the hiring scale in the first place.
The problem with Title VII, as far as I can see, is that it sets up a system under which running a quote system is the safe way to go, because if a merit system that’s entirely unbiased doesn’t happen to generate the right statistics, you’re screwed. A quota system is the only way to be sure you’re safe.
But, I will say that, given the atrocious state of the law, Sotomayor’s ruling was defensible, though not really mandated.
I mean, you seem to be assuming that, if the test didn’t pass a single black, there’s something wrong with the test. Maybe you ought to ask why none of the black officers could pass it? Maybe New Haven was hiring blacks without respect to merit in the first place, just to make quota? And the test just revealed THAT racial discrimination…
As I recall, New Haven “chose not to lift a finger” to defend the test because there wasn’t any objective evidence that this particular paper-and-pencil test was a good predictor of success in on-the-job performance.
It’s sensible to defend a test that actually measures skills and experience relevant to the job in question, even if there’s substantial difference in scores by racial group.
But if a test seems mostly to measure the ability to take tests, then it’s sensible to go back to the drawing board and try to devise a new test that better measures qualifications to do the job. If the improved test also happens to produce less disparity in scores by racial group, that’s an added bonus.
I’d say something stinks somewhere. But without a close look at (at least) the test in question, I can’t say for sure where that bad smell is coming from exactly.
It’s damn easy to (even without intent) rig a written test in a way that puts certain groups at a disadvantage* but it’s also possible that in a group of limited size statistics look biased by mere chance.
*IQ tests or multiple choice in general more than tests requiring extended writing.
This is a well reasoned defense. The noise is coming from the controversial nature of the subject matter. Let’s say the majority was wrong. It would be one case and she had company. If this is the worst critics can bring, they have little to offer.
Don’t you know the hidden amandement that states that SCOTUS members must be infallible? 😉
Brett,
What is wrong with quota systems? We have them on a de facto basis for many well paying professions (cf. Wall Street investment bankers).
Low paying professions…? Well, not so much (cf landscapers).
How does the conservative world view steeped in the alleged worship of freedom and “merit” explain this undeniable outcome?
Hilzoy —
Your analysis is missing something quite significant: Consideration of whether it was appropriate for the district court to award summary judgment. Summary judgment if there is no disputed question of material fact. In this case, there is disputed evidence whether New Haven discarded the test solely out of a fear of Title VII liability or at least in part because it did not like the racial breakdown of the results. If the latter, their action was not clearly permissible. This is why the Obama Administration has filed a brief in the case asking the Supreme Court to vacate and remand the case. According to the Solicitor General’s brief, neither the district court nor the Second Circuit panel on which Judge Sotomayor participated gave adequate consideration to these contested questions of fact — and the mere existence of such questions should have precluded summary judgment.
Furthermore, as another commenter has already noted, moderate judges, such as Jose Cabranes, disagree quite strongly that the case outcome was dictated by Circuit precedent, and disagreed strongly enough to call for en banc rehearing and criticize the panel’s handling of the case.
JHA
we’re talking about fire-fighters here, right?
people who run into burning buildings with hoses?
does it really seem like *any* paper & pencil test is going to do a good job of sorting the competent fire-fighters from the ones who don’t have the right stuff?
i mean–my point here is not directly on the law in the way hilzoy’s post is. but it does go some way towards addressing whether new haven was acting in good faith.
and my point is just this:
a test that says that black people cannot be good fire-fighters, is clearly a hopelessly flawed test.
look, pretend you’re the most retrograde racist on the planet. imagine you think that all black people are illiterate and ignorant.
do even you, in your racially benighted state, think that black guys are not just as capable of chopping down doors, running up ladders, and carrying hose as white guys are?
so if you had a test which somehow told you that black people just couldn’t cut it in the hose-toting business, wouldn’t you think that this was a really lousy test to use for hiring fire-fighters?
like, maybe so utterly lousy that you should throw it out?
if i were the city of new haven, and my options were to throw out the test, or to go through, question by question, and show why filling in the c-bubble instead of the b-bubble was really proof of whether you could rescue kittens or not, i would do what they did and throw it out.
when a test gives results this ridiculous and irrelevant to the job in question, the burden of proof, to my mind, does not lie on actors who want to throw it out, but on those who want to keep it.
Jonathan– Let’s assume that you’re right, and that the “moderate” minority on the Second Circuit had the better of the argument.
Who cares?
The issue is Sotomayor’s fitness for the SC. She was one vote in a majority here. There’s simply nothing troubling, much less disqualifying, about this.
This issue is being raised in this context solely because conservatives are obsessed with race. They see that Sotomayor isn’t white, so they classify her as “other,” and hunt down cases that confirm this impulse. That she ruled against a Hispanic plaintiff doesn’t seem to factor into their calculations.
Elvis, Jonathan’s point regarding summary judgment (a point I made as well in my 7:08 am post) gets at a larger issue: Juries, not judges, decide facts. When a judge usurps the role of a jury and decides issues of contested fact his or herself, it’s a problem.
It’s not so much about who should win, here, but who should decide. I read the district court opinion as a practicing lawyer who has filed many a summary judgment motion. I simply cannot believe that the judge granted summary judgment on these facts, and the 2d circuit majority erred in upholding the judge’s improvident grant. I would be surprised if the Supreme Court didn’t vacate and remand.
Not correct. They are presumptively in violation of the EEOC’s view of the law — not the same thing.
Under Chevron deference as applied by this court, they are tantamount to the same thing. Although I expect Scalia et al. will fall over themselves to come up with a reason why the rule they use in 95% of their cases doesn’t apply here.
“watching the GOP machine these last five months has been a revelation. i suspected it before, but it’s now perfectly clear to me: politics is partisanship; all political speech is rhetorical, and 90% of it is literally nonsense.”
Ditto that. I came to that conclusion years ago.
Add in the observation that much of our individual political outlook is influenced if not determined by cultural and genetic (i.e. personality) factors which are at least partially beyond the control of the individual, and to me the logical conclusion is there is not much point to getting in anyone’s face and yelling at them when it comes to politics. Might as well complain about their hair color and sexual orientation for all the good it will do ya.
It is worth keeping in mind that this nonsense in politics is a two way street and all tribes are vulnerable. By the time the street sweeper finishes driving down the right side of the block sweeping up all the leaves and dust and trash, it will probably be time for it to make a U-turn and make a pass on the left side. What goes around comes around.
Fine enough on the summary judgment issue. It’s perhaps a valid criticism — not reading the case closely. Again, is this a trend of cases she joined? As E. notes, it is but one case.
Also, as recent opinions suggest, the Supreme Court play fast and loose with clear disputes over the facts when it fits their ends, often conservative. So, don’t be so keen on thinking they will remand the case on that issue. Sure, could be right.
In fact, she discussed the point in a fashion in the video where she made the point about appellate courts making policy. She noted that they are often less concerned with individual litigants — though not always — centering on the overall principles of law.
This bias of sorts can skewer judgments on such things as if summary judgment was warranted. I’d need to see trends to see if this one case truly matters in this respect.
In fact, she discussed the point in a fashion in the video where she made the point about appellate courts making policy. She noted that they are often less concerned with individual litigants — though not always — centering on the overall principles of law.
This bias of sorts can skewer judgments on such things as if summary judgment was warranted. I’d need to see trends to see if this one case truly matters in this respect.
Then again, put two and two together. Yes, she said appelate courts makes policy. Now, read the analysis of her opinions. A lot of them say that they are made on narrow grounds, citing lots and lots of precedent.
Yes, there does seem to be a bias here…but it appears to be a bias that would seem to please conservatives–being HIGHLY aware that you’re making policy and ruling narrowly because of that awareness.
Jon and Adler state the issue well. The concern here is whether Sotomayor swept the case under the rug by not arguing for en banc. It appears to be very unusual to have a case of this nature not be heard in full. By not issuing a decision en banc, the chances of SCOTUS review were slim until Cabranes came roaring in holding up a red flag screaming “certiorari!” And he, a Clinton appointee.
And remember that the vote was 7-6 on hearing en banc. Yes, the “majority” sided with her, but by a very slim margin.
The reason why a complete review would have been appropriate here was it was a novel question we will likely see more of without a definitive answer. Hilzoy’s statement that Sotomayor was applying “clear precedent” ignores an important point. That is true only if you assume that New Haven’s motivation was to avoid Title VII liability. The firefighters argued that New Haven was caving in to racial politics.
In the briefing before the Supreme Court, apparently all (apparently because I have not read the briefs; I’m taking this from second hand accounts I have read) parties agree that if New Haven cancelled the test because it did not want to promote the plaintiffs because of their race New Haven’s acts were blatantly illegal. A lot of the discussion centers around New Haven’s purported motivation of not running afoul of Title VII’s provisions. But the firefighters argued to the contrary and said this was nothing more than good old fashioned racial discrimination and argue that there is substantial evidence in the record to show that. So why didn’t Sotomayor address those concerns?
And you have to ask yourself if you would feel the same way if the facts were different only with respect to who did well on the test. What if only blacks had passed the test. Would you accept the following statement by Judge Arterton? (the district court judge):
“All applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.”
I think it would be plain to see that if “too many blacks” had been promoted throwing out the test results would have been blatant racial discrimination.
The test was reviewed by a purportedly reputable firm to weed out any racial preference. After the fact no problems in the test were found. Given the small sample size, I would not think that it that statistically unusual for this result to happen for entirely non-racial reasons (statisticians out there?) So why does everyone leap to the conclusion that the test is flawed?
And given the pressure by political groups to throw out the test, why can’t Ricci argue to a jury that throwing out the test was not for a purportedly benign “avoid the Title VII lawsuit” reason but due to racial politics?
Ricci’s case from an individual standpoint is compelling. He’s dyslexic and paid a friend $1,000 to read to him to study for the test. He quit a second job to study. He was 6th of the lieutenant applicants.
“A strictly insider question for the lawyers out there…..Ricci was an “unpublished opinion” I believe. I wonder how many times an “unpublished opinion” has been granted cert? ”
I think this was the result of Cabranes dissent. Not too many summary decisions adopting the reasoning of the district court have dissents like his.
von: “There are so many factual issues screaming out of this case that it was highly improvident for the District Court to grant summary judgment. This case should have gone to a jury. (This doesn’t mean that the firefighters should win, only that the Court shouldn’t have entered judgment without a trial.) I expect the Supreme Court to vacate and remand with exactly those instructions.”
Here I have to get into the weeds a bit. If you read the case, one problem is that there are two different standards that the court might have used to assess the main factual issue, which was: was New Haven motivated by racial politics, or by a desire to avoid litigation? Which standard to use depends on what, exactly, the plaintiffs were claiming. Given one sort of allegation (call it A), the court needs to answer the question: was New Haven’s claim that it was trying to follow the law a mere pretext for an attempt to discriminate? Given another sort of allegation (call it B), the court needs to answer the question: did New Haven have mixed motives for doing what it did, and if so, was that mixture an impermissible one?
Cabranes thinks that the majority should have used mixed motive analysis. The majority claims that that analysis was not available to them, because the plaintiffs had in fact only made allegation A. They argue that to say “but if the plaintiffs had made argument B, which they did not, then we would use this other test, which the government would fail”, is inappropriate for judges. I do not know enough law to say whether they are right about the plaintiffs’ use of the arguments, etc. I do know, though, that if they are right that the plaintiffs did not make this allegation, then the court ought not to pretend that they did, for the same reasons that make it wrong for a judge to say: well, you’re innocent of the charges actually brought against you, but looking over your record I can see this other crime … — I mean, I have always understood that judges are supposed to settle the questions brought before them, not invent whole new ones. And that’s what these judges seem to have done.
Now: if the question is whether New Haven’s actions were a mere pretext, there’s ample evidence that it was not, including not just the fact that they do, in fact, seem to have been presumptively in violation of the law, and were so advised by counsel, but also a whole mass of meetings and consultations about what to do to get themselves in compliance with Title VII, etc. I can see a case based on the claim that their motives were mixed. But it’s really, really hard to see a case based on the idea that they weren’t really concerned about Title VII at all, it being a mere pretext.
Von again: “Not correct. They are presumptively in violation of the EEOC’s view of the law — not the same thing.” — As the cases say, an implementing agency’s view of what the law is is entitled to “great deference”.
Jon: “One point that does disturb me about the Ricci case is the way in which the original panel (which included Sotomayor) appeared to try to bury the decision by issuing a summary affirmance based on the reasoning of the district court’s opinion. Such affirmances are by no means uncommon in general, but for this specific case with these issues, it was very, very odd. One can ascribe nefarious motives to the panel, but I think they just wanted to dodge a really tough issue and a really tough case. Understandable but not really the right thing to do. This is what pissed off Judge Cabranes (a moderate-conservative Clinton appointee), and he went out of his way not to express his views of the merits, only to strongly criticize the panel for their handling of the decision.”
I didn’t address this, since I have no idea whether this sort of thing is common or not. A commenter at the Monthly says:
“I would just like to add one small detail to the story – a procedural thing that I’m more familiar with as a lawyer in the Second Circuit. Some people on the web seem to be criticizing Judge Sotomayor not for how the three-judge panel she was on *resolved* Ricci, but rather, for the fact that they just did it in a short paragraph instead of writing a full opinion. This criticism is very misguided. Not uncommonly, the Second Circuit judges on an appellate panel decide that the District Court judge has done an excellent job, and therefore conclude that nothing is gained by having them essentially rewrite all the reasoning that is already set out in detail by the lower court. So, they do a short paragraph, and in effect just incorporate by reference the reasoning of the trial judge. (It’s a feather in the cap of the trial judge when it happens – it means they did an particularly good job.) That is what happened here. It happens all the time. One conservative judge on the court, Jose Cabranes, decided to make a stink about how his colleagues had given the case short shrift. He was well aware that Sotomayor and her panel were not doing anything unusual; he just wanted to prompt his colleagues and/or the Supreme Court to take a closer look at the case. (He succeeded: the Court granted cert.) The allegation that Sotomayor and the other judges on the panel were trying to “bury” or ignore the issues in this case is wholly without connection to reality.”
@von
Given the spotlight the case has been given and the current makeup of the court, I am certain that that the Supremes WILL vacate and remand
However, Sotomayor voted as one of a unanimous panel in the case-and the panel’s vote was upheld by the majority of the Circuit. Its not like if she was writing for the majority or if the decision overturned some major precedent. She is pretty much going with the flow of the Second Corcuit-which affirms the view of her as a judicial moderate.
OCSteve: About the NRO: it was precisely because I had read that piece, with its citation of Cabranes’ claim that the precedents were not on point, that I went out and read the precedent that the district court seemed to rely on most. Again, I am not a lawyer, but it seemed to me to be precisely on point; if anything, it would have justified even more than New Haven actually did.
When I suggested in comments on an early Supreme Court picks thread that it was very unlikely that, given four nominations, Obama would appoint four liberals, some other commenters were clearly incredulous. I was asked on what evidence I based this apparently far-fetched speculation.
Well, the new President hasn’t even gone one for one.
I’m not opposed to Judge Sotomayor’s confirmation at all, but the idea that someone is automatically a liberal because they’re a woman or they’re Nuyorican is ridiculous.
Nor am I disappointed or upset that Obama hasn’t picked an actual liberal for his first Supreme Court pick. But this pick says to me that it’s unlikely he will for his next one, either — because Sotomayor has been branded “liberal” by the media and wingnuts, the usual brain-dead calculation will apply: next he has to appoint a white male moderate. {Hellooooo, Cass Sunstein.}
“To prove this allegation, the plaintiffs must first show that there is a prima facie case that they were discriminated against. Next, the defendants can argue that despite this prima facie case, they had a legitimate reason for doing what they did. If they cannot do so, the plaintiffs win; if they can, we move on to step three: the plaintiffs can argue that this supposed reason is a mere pretext disguising discriminatory intent.”
In my previous reading a few months ago, I would have sworn the Fire Department had the test designed initially with the point of narrowly tailoring it to avoid the possibility of EEOC problems at the very beginning (before anyone had taken the test). I can’t find it now, but can anyone confirm or deny that for me?
As far as the facts go, I can’t imagine a normal case being decided at the summary judgment phase with this many important factual issues left unresolved. Judges are normally pretty reluctant to dismiss plaintiff claims early anyway and they aren’t supposed to do it unless the case presented is completely hopeless even if you conceed every material fact to the plaintiffs. But if you do that in this case, you absolutely have things left for the jury to decide.
If you conceed all facts in dispute to the plaintiff (which you must do at the summary judgment phase) you are left with at least one crucial factual dispute that must be resolved by the jury: whether or not the litigation excuse was a mere pretext used to discriminate. That can’t be resolved by without factual inquiry. (Note that the case you quote [Bushey] reverses a faulty summary judgement motion and remands it for further factual inquiry. This case does the opposite and removes the possibility of further factual inquiry).
Contra the commentor you quote, this was a case of first impression: the point of whether or not the alleged fear of litigation should cut off factual inquiry about racial motivations alleged in a decision maker via summary judgment had not been resolved previously. It is an important question, because it would make inquiry even to blatantly illegal (under the current understanding) quota systems very difficult.
This case also highlights an interesting form of legal drift. There is nothing in Title VII that you could read into requiring this kind of outcome. It says things like:
And even more on point:
There is of course no evidence whatsoever that the test was designed or intended to discriminate. And in fact the whole actions of the Fire Department around this case suggest otherwise.
Noone claims that the Fire Department is unlikely to be able to prove that the test was not job related. They merely claim that proving so might be costly in litigation. Which is of course true, but doesn’t normally provide a get-out-of-litigation-free card. And which certainly doesn’t let you avoid litigation (at the summary judgment phase or earlier) about whether suddenly canceling the test is racial discrimination against those who passed it.
And we also have:
What I find interesting about this case (which doesn’t really hit Sotomayor one way or the other) is that the decade-long build up of precedent appears to have caused the application of the law to have drifted into something which is almost at odds with the law itself. What do you do in cases like that?
“a test that says that black people cannot be good fire-fighters, is clearly a hopelessly flawed test.”
But a test which says that one particular set of black people cannot be good fire-fighters is NOT clearly a hopelessly flawed test. There certainly must be black people who wouldn’t be good fire-fighters, right? And nothing guarantees that, in any particular instance, they won’t be the ones taking the test.
@Nell
I too would have liked to see Obama appoint a fiery, Brennan-type liberal to the court-if only to counterbalance the fiery conservatives on the Court. Instead, Obama replaced a slightly right of center moderate with a slightly left of center moderate, so we get the Court moving incrementally leftward.
Hey, she is a woman and a Latina, so let’s be thankful for those not so small mercies.
“I too would have liked to see Obama appoint a fiery, Brennan-type liberal to the court-if only to counterbalance the fiery conservatives on the Court.”
The conservatives on the court, such as they are, are no more “fiery” conservatives, than this nominee is a fiery liberal. They’re actually pretty mushy conservatives, for the most part.
“They’re actually pretty mushy conservatives, for the most part.”
Brett, I hate to break it to you, but there are many, many, many people in the world who do not comply with your definition of conservative, but who nonetheless identify themselves as conservative, and are recognized as such by everyone in the world other than you.
“there are many, many, many people in the world who do not comply with your definition of conservative, but who nonetheless identify themselves as conservative, and are recognized as such by everyone in the world other than you.”
Larison recently posted an interesting take on this problem.
The short version would be that libertarian conservatives and other non-mainstream, non-GOP water carrier types are now in the unfortunate position of someone who let the neighbors borrow their car, which was used to rob banks and run down hapless pedestrians, and are now left wondering why the cops look at them funny when they drive through the neighborhood.
Usually, a nominee’s critics dig up the best instance to support their opposition, but Sotomayor looks OK in this case. Critics lose.
Russell, I’m every bit as entitled to notice that the far right end of the political spectrum isn’t represented on the Court, as you are to notice that the far left end isn’t. The Justices are the mushy middle of American politics, with huge expanses of opinion to be found to BOTH sides of them.
If they have any consistent political bias, it’s in favor of expansive federal power, which is to be expected of judges nominated and confirmed by federal officeholders.
I wouldn’t say ok, but she’s the best you’d plausibly expect out of Obama, and he didn’t nominate anybody you’d be able to defeat in a 61 Democrat Senate. As I said a while back, elections have consequences, Obama isn’t going to nominate anybody Republicans would like.
cleek
“The GOP is stroking its base right now. there’s no election, so they can pretend to be everything the base wants them to be (the Dems might take a lesson)”
I would say, wait until 2010 to see what the lesson is — right now, they don’t seem to be doing themselves any favors.
nell (at 12:05)
I’m pretty sure this was my point at the time, but here it is again:
Is Sonia Sotomayor more moderate, more conservative, or less liberal than David Souter?
If not, we’re really just splitting hairs here.
Wondering where my post, responding to Nell at 12:05, went.
Basically, as I said last time he brought it up, the real question is whether Sotomayor is more moderate, more conservative, or less liberal than Souter.
No matter — turns out stonetools essentially beat me to it (12:39).
The rest really is hair splitting though.
“Russell, I’m every bit as entitled to notice that the far right end of the political spectrum isn’t represented on the Court, as you are to notice that the far left end isn’t.”
Well, the far right are neo-Nazis, just as the far left are communists. I have to say that I’m relieved that no one on the truly far ends of the spectrum are on the Court.
Just to benchmark your spectrum, though, Brett: so Thomas and Scalia are moderate conservatives, then? And Roberts and Alito the same?
Which judges or individuals would you, if you were president, nominate to represent the proper and sane “fiery” conservative view?
“If they have any consistent political bias, it’s in favor of expansive federal power”
That’s the view of Thomas, Alito, and Roberts? Interesting.
“The Justices are the mushy middle of American politics, with huge expanses of opinion to be found to BOTH sides of them.”
You might be correct, Brett — though I shudder to think what “huge expanses of opinion” are to be found to the right of Scalia.
But are you talking about personal political opinions, or judicial interpretations? A judge might personally believe that The Law should afford women the absolute, unrestricted, individual right to own guns but should absolutely forbid them to have abortions. For all I know, Scalia personally believes exactly that. As a judge, however, he is constrained to be more … moderate. Not because he was “nominated and confirmed by federal officeholders” but because The Law is not quite as “conservative” as he would like it to be.
–TP
I think you could fairly say that Scalia and Thomas are of the right while Roberts is of the middle right. O’Connor was middle right, Kennedy is middle/hard to classify. Souter turned out to be mostly left. Ginsberg is definitely left. Stevens is hard to classify but in a mostly leftish way. Breyer is left. Alito is right.
“That’s the view of Thomas, Alito, and Roberts? Interesting.”
When it comes to the unilateral powers of (Republican) presidents, or to police powers, I’d say that they are in favor of expansive readings. However, I would also note that this places them firmly in the modern American conservative tradition in all its authoritarian glory, “no true Scotsman” protestations to the contrary.
And Mr. Farber, you are apparently not aware that neo-Nazis are actually on the left. No, really. I know it sounds crazy, but in a world where Judge Sotomayor is a “leftist,” anything is possible.
I do find it interesting that summary judgement by a District Court has so coincidentally become a bugaboo, though. Especially when it has already been pointed out that the argument hinges on the “controversial” question of whether New Haven was worried about a Title VII lawsuit at all. After all, without a jury trial, how do we know that city attorneys don’t just have a thing for sticking it to Whitey, especially at the expense of those Italian-Americans whom Mayor DeStefano so plainly despises? If this didn’t involve a pre-existing hot button issue for certain parties on and off the Court, don’t expect me to believe that summary judgement would have been a sticking point.
“Which judges or individuals would you, if you were president, nominate to represent the proper and sane “fiery” conservative view?”
I wouldn’t, I’m not a conservative. I do, however, think highly of Judge Alex Kozinski.
Debating SCOTUS appointments is a pundit thing. I doubt if most Americans are tuned in, or even want to be tuned in that closely – not to say they don’t care, it’s just an elusive concept for most. Once a president is elected, then they should have the preponderance of responsibility to nominate a suitable Supreme Court Judge, regardless of politics or legacy concerns. And most judges that reach the short list would probably be qualified. In fact, a person that reaches that point in that career, once approved, could certainly be expected to follow their own heart regardless of party politics or world view. Most of the politicians and talking heads that are leading open public opposition to SCOTUS selections end up scarring their own reputations – if that group could sink any lower. In this arena, speaking to the base is baseless. Nominate, debate, vote. Move on.
Sorry about the posts, I hate to drop by without saying hello. It’s been a great balancer for me to visit in these trying times to see what discussions you guys are avoiding. Pretty revealing. Hilzoy still far outclasses you all – the dreaded pirate hilzoy that is.
God Bless.
“Hilzoy still far outclasses you all”
Well, you got one thing right at least. At least, with respect to front page posters (with all due respect Von, Publius and Seb)
“Russell, I’m every bit as entitled to notice that the far right end of the political spectrum isn’t represented on the Court, as you are to notice that the far left end isn’t.”
I’m not trying to deprive you of any entitlement, I’m just trying to get my head around exactly what a SCOTUS judge would need to embrace to earn the title “conservative” in your eyes.
The problem with the district court decision is that it granted summary judgment — judgment without a trial — in favor of the City when the case authority requires a trial under Title VII. You pointed to it in the 3 Step analysis — the City of New Haven established to the satisifaction of the district judge it had a legitimate reason for what it did. That doesn’t mean the City wins, it simply means the City doesn’t lose at that point. The plaintiffs were then entitled to a trial on the question of whether the reason was merely a pretext.
Granting summary judgment without having a trial on this disputed fact — whether New Haven’s justification was real or pretextual — is where the district court erred. And the panel decision in the 2nd Cir. made a mockery of the appeal process by not even deeming it necessary to address the claims of error raised by the plaintiffs in their appeal. In essence, the Court of Appeal — after 150 pages of briefing, 1800 pages of records and transcripts from the district court proceedings, and one hour of oral argument — issued two paragraph decision saying “We agree with the district court” and not much more.
The Supreme Court is going to reverse — maybe unanimously — not on the merits of the plaintiffs’ claims, but simply on the procedureal question of whether summary judgment against them was appropriate under the circumstances.
That its a scalding indictment of Sotomayor’s COMPETENCE as an appeals court judge.
Hilzoy, you are deluding yourself.
So if the whites had not achieved scores within 80% of another racial group, and New Haven did the same thing, can you honestly sit here and say that Sotomayor would have come to the same legal conclusion when that racial group sued? Yeah, keep telling yourself that.
You see, that’s the easiest way to tell if something is racist. Just reverse the situation and honestly tell yourself if the outcome and reaction would have been the same.
Grasping so tightly to this “precedent” business is a cop-out. You don’t believe in such a thing as judicial review? How about equal protection under the law whereby assigning this ridiculous 80% rule is so patently racist on its face that one need only look to the constitution itself to find “precedent” and “legal grounds” to see the racial discrimination what New Haven did (even if Title VII demands it).
THAT is the judge’s primary duty: interpret the law based on the constitution, not on what some prior judge may have incorrectly decided. Ever heard of Dred Scott?!? Are you now arguing that no subsequent court should have overturned it because it was “precedent”?
I don’t think Sotomayor is a “racist”, but I think she rules based upon the (false) premise that all Caucasians have an unfair institutional and cultural advantage against all non-whites, and that forced race-based outcomes are fine as a matter of law. That alone, I believe, should disqualify her from service on the Supreme Court.
“I’m just trying to get my head around exactly what a SCOTUS judge would need to embrace to earn the title “conservative” in your eyes.”
Maybe you should ask what the judge would have to embrace to earn the title, “fiery” conservative, since that’s what I denied were on the Court.
If you start with the assumption that the law, liberals, and all instruments and proponents of anti-discrimination measures are secretly fine with discrimination against straight white males, then I don’t think it’s worth much fanfare when you conclude that anti-discrimination measures are actually discriminatory. That’s closer to begging the question than proving the point.
Here’s something you won’t see everyday: I actually agree with von and Brett. I’d really like to see this test, as my suspicion is that it is very similar to one that caused some controversy in my own neck of the woods:
Read on:
Assuming that the same passing rate applies, it seems that 7 out of 10 prospective firefighters could not answer that question.
Now, you can say that this is discrimminatory, that knowing how to figure out the answers to these questions isn’t really necessary to fight fires all you want. But it seems to me that if I was a white guy who passed a test like this and then was denied a promotion or was not hired on the grounds that it was ‘discriminatory’, well, I’d be pretty hot too.
So it seems to me that it is entirely possible that Ricci was indeed bad case law. Is there any reference made to the specific questions on the test itself anywhere? If not, then there’s no way to tell.
(note: this is why I’m into the science and math stuff. Not law or politics.)
The plaintiffs were then entitled to a trial on the question of whether the reason was merely a pretext.
Only if they could show a genuine issue of material fact, not mere speculation. If shouting “pretext!” got you to a jury, there would be a lot more Title VII trials.
Can anyone point us non-opinion-readers to the alleged evidence in support of mere pretext?
Thanks!
“You see, that’s the easiest way to tell if something is racist. Just reverse the situation and honestly tell yourself if the outcome and reaction would have been the same.”
You can’t reverse history, and existing circumstances. “White” people” made “black” people slaves. Jim Crow kept “black” people down, not “white” people. Pretending that their circumstances can be reversed is a fantasy of those who seek to deny reality and history so as to benefit themselves, and the more powerful over the less.
Oppressed and oppressor are not, in fact, mirror images of each other. That’s a Big Lie.
And Mr. Farber, you are apparently not aware that neo-Nazis are actually on the left.
And today’s, “Oh, Brother” award goes to . . .
It’s because it’s got socialist in it, Phil. Even middle school social studies class is a little bit leftist.
Social dance is even worse.
Unless it’s contra dance.
You prove my point Gary. You base your assumptions on skin color, not on the character and skills of the individual. Moreover, you presume ALL whites are oppressors, and ALL non-whites are oppressed. That’s actually the racist view.
What white people alive today enslaved black people over 100 years ago? That’s right: none.
The situation CAN be reversed and is entirely applicable. Furthermore, you do then admit then that Sotomayor should have (and would have) come to a different legal conclusion if the test results were reversed?
Are you saying that “Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?” is a racist question one way but not the other? Hey, I’m all for affirmative action myself. But what you seem to be saying is that out-and-out quotas are okay. That I would have to strenuously object to.
Historical amnesia, indeed.
bc at 11:11 AM
I’m trying to get my head around this but aren’t those two the exact same thing? It’s clear New Haven motivation wanted to comply with Title VII. That’s the reason they threw out the test. You just want to make it sound something “dirty”. But that “dirty” thing is the Law in New Haven.
The case is essentially a “damned if you do, damned if you don’t” situation. Had New Haven decided to uphold the test, they would probably get sued by the minority fire fighters. It’s always tricky to play the “what if” games but I think in such a case it would have been pretty obvious that the courts would have ordered the city of New Haven to throw out the tests because they violated Title VII of the Civil Rights Act.
ScentOfViolets
From the horrible way the question is phrased, I’d say, fire the people who wrote and approved the question (“length of hose is 30 feet long”; “How many lengths of hose are needed”. Replace “length of hose” with hose and the question is much easier to read. What do you think the answer is?
A lot of non-firefighters probably would have answered 3 “lengths of hose”. But would that be correct? You don’t want to get your a$$ on fire, you always want to keep a distance and a distance of at least 30 feet seems about right to me. So two “lengths of hose” might be enough? The water pressure will do the rest?
Or maybe it is standard procedure to ALWAYS take ONE more “lengths of hose” as anticipated? To prevent having to adjust your “length of hose” at a critical moment and waste valuable time?
I love the way certain Federalists argue the law here. Especially the one person who proposed the scenario if standarized tests favors black. Nothing like arguing in a vacuum because such a test does not exist. You can argue a nonsensical scenario till you’re blue in the face, but the fact is there is no case law where a standardized test has been show to be statisically biased on behalf of blacks. (And let’s take into account how Asians are treated. It’s amazing how schools counter Asian enrollment by focusing on “external” extracurriculars to raise their white enrollment (but the conservatives scream bloody murder when that same logic is applied to other minority applicants)).
Finally (with regard to the Wise Latina comment), let me tell you that my experiences being called a chink or a gook during my childhood does make me more qualified to discuss racism than those white males who were the ones doing the name calling. Feel free to disagree but you’re being intellectually dishonest.
“You base your assumptions on skin color, not on the character and skills of the individual.”
No, I base my understanding of racism on how racism works. When people act on a racist basis, conscious, or in most cases unconscious, they’re precisely not acting on the basis of the character and skills of individuals.
“Moreover, you presume ALL whites are oppressors, and ALL non-whites are oppressed.”
No, I presume that people perceived as “white” get to take advantage of that privilege in innumerable situations, and people perceived as “black” get disadvantaged in innumerable situations. Not all situations; just countless ones.
Every day countless numbers of dark-skinned people are treated differently than people perceived as “white” when they apply for jobs, seek rental housing, walk into high-class stores, and in innumerable other situations.
You may not notice this, and if so, how lucky you are.
“What white people alive today enslaved black people over 100 years ago? That’s right: none.”
And in my lifetime Goodman, Schwerner, Chaney, Medgar Evers, and plenty of other people weren’t killed because of racism, and racism today doesn’t exist. Hooray! (Sexism has also been eradicated in your world, I suspect.)
Try taking this test and checking your results.
“Are you saying that ‘Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?’ is a racist question one way but not the other?”
I have absolutely no idea how you got that out of anything I wrote.
“But what you seem to be saying is that out-and-out quotas are okay.”
If you can quote me the sentence in which I addressed the topic of quotas, or anything related to the topic, I’d be surprised and interested.
@SOV
I think that the fire hose question could be justified as being reasonably related to job requirements. The issue would be whether the remaining questions were like that, and not questions of the “Who is the president of Azerbaijan?” type-questions not related to the job of fire fighting, or leading a team of fire fighters.
Oh, Puhleeze. This is past bending over backwards reaching. Look at what the very first sentence says: Hundreds of aspiring firefighters failed an entrance exam this summer because they could not answer basic math and reading questions, according to the city’s personnel chief.
Do you seriously think the answer is anything other than 3?
Gary,
I respect guilty white liberalism as much as the next guy. I read the same sociology books you did about how black people can’t be racist. (But then I lived in Africa for a bit, and came to think differently.)
The question is whether guilty white liberalism is a good reason to die in afire because the person who came to get me couldn’t figure out how long a hose to use.
Hilzoy — “The basic point of all this is: both the District Court and the Second Circuit seem to me to have been applying the law in accordance with clear precedents. This is what judges are supposed to do.”
Really? Hunh. Tell me something: what did judges on these benches rule “in accordance with” before there were precedents?
Big fat fail, Hilzoy. Back to civics class with you.
“I read the same sociology books you did about how black people can’t be racist.”
I never said any such thing.
“But then I lived in Africa for a bit, and came to think differently.”
Indeed, human society is rife with different groups holding more power than another; sometimes it’s a majority over a minority, sometimes it’s a minority over a majority. Either way, denying it’s the case when it’s the case is denial of reality.
“The question is whether guilty white liberalism is a good reason to die in afire because the person who came to get me couldn’t figure out how long a hose to use.”
Again, if you can point out to me where I wrote anything about this issue, I’d find that educational.
I think it’s pretty clear how I got it: you’re saying that if the results fall out one way it’s racist, but if they fall out the exact same way only the minority status is reversed, it’s not.
Huh!?!?!?
You seem to be saying that if an applicant can’t answer answer the question I gave and they’re a minority(and this happens with that <80 disparity) then it's 'racist'. But if it were a case where the same disparity existed, only the skin tones reversed, it would not.
Personally, I don't think it's too much to ask of a prospective firefighter that it takes 3 30-foot hoses to reach 90 feet, be they white, black, or metallic green.
Maybe I've misunderstood what you've written, but it sure seems like you think that people who are unable to answer that question should still be given a pass if they are of the right color. That, imho, is nuts.
ScentOfViolets. Admit that you simply assumed people flunked because they could not do simple math. Why not assume the people thought it was a trick question and answered two because that is probably what is done in practice? Maybe they were too smart for their own good?
But I hope you agree that that question was horribly phrased. Not? Would you ever answer a question with: “you need three lengths of” whatever it is you want to use?
You said it much more pithily than I, Pithlord. Yes, that’s exactly what I get from what Gary is saying.
Well, in the case I described, the courts finally did decide the questions were fair and pertinent. It’s there at the bottom of the story if you click on the link(On a personal note, I once taught an 8-week session in East St. Louis back when they were having their accreditation problems. Never again. And if one of my ‘students’ couldn’t answer on that test that nine times six is fifty-four, I wouldn’t have been the slightest bit surprised. And no, that’s not a racist observation.)
The question then is what the test was like in the Ricci case. That’s why these sorts of things are important, all the high-falutin’ lawyering aside. And if they were, well, I’d say that the court messed up in this instance – and messed up spectacularly in all the ways conservatives are fond of hanging on to liberals.
You think I’m cringing away from ‘admitting’ it? Not in the slightest. Yes, I do believe that the people who failed the exam were probably that cringe-inducingly innumerate.
Now, assuming that’s the case (you don’t have to agree that it is, just assume it for the moment), is that the sort of person you really want to have employed as a fireman? Do you really think that this is too high a standard, or that performance in answering those sorts of questions is really irrelevant to firefighting?
Maybe you just disbelieve that sort of innumeracy and/or illiteracy is possible. I assure you, it most certainly is.
“I think it’s pretty clear how I got it: you’re saying that if the results fall out one way it’s racist, but if they fall out the exact same way only the minority status is reversed, it’s not.”
Quote the sentences in which I “say” this.
“You seem to be saying” what I wrote. Nothing else. You seem to have a very active imagination.
To be very very very clear, I’ll say this very very slowly: I haven’t written a single word addressing the New Haven case. Nowhere, no place, at no time.
Let me ask you equally slowly then: Do you think that someone should get a pass on not being able to answer questions of the type given in the article I linked to because they happen to be a minority?
If you say ‘yes’, then I’d say that I was spot on. If you say ‘no’, then yes, I misread you. I think that’s what the person you were replying to was getting at.
“Do you think that someone should get a pass on not being able to answer questions of the type given in the article I linked to because they happen to be a minority?”
I’m going to assume you don’t mean that double negative, and that your question is actually “Do you think that someone should get a pass on being able to answer questions of the type given in the article I linked to because they happen to be a minority?”
And my answer is — and this is the first time I address the subject — is that, of course, people should be able to answer questions that are relevant to their sought-after job.
On the New Haven case, I have no opinion, as I haven’t read enough about it to have an opinion. Which is why I haven’t written a word on the topic.
Not a word. I wrote a comment about racism, responding to a comment about racism. Period.
Considering it was a test aimed at people who were already firefighters, designed to classify people for eligibility for promotion why do I get the feeling that rudimentary math was not a significant part of it?
But then strawmen are fun to hit aren’t they?
It seems that the case of Bushie can be distinguished from Ricci on at least one important issue.
The Court in Bushie(regarding a test that had its methodology recalculated in order to provide for a higher minority pass rate) stated
“Despite the possible statistical weaknesses in the State’s approach,12 the relevant question under Weber is whether in practical terms the plan “unnecessarily trammel[ed] the interests” of the nonminority employees. 443 U.S. at 208, 99 S.Ct. at 2730. Herein, as in Weber, the adjustment plan did not displace any nonminority candidates from the eligibility list (it merely added eight minority candidates to the list), did not place an absolute bar to the advancement of nonminority candidates, and was only temporary in nature. Moreover, the plan in the instant case was tailored narrowly to eliminate the adverse impact of the test and did not aim at maintaining a racial balance in futuro.
It seems to me that the actions of New Haven “unnecessarly trammeled on the rights” of the firemen who did not receive a job promotion because they were white. Maybe I’m reading the case wrong but the District Court did not address this possible distinction.
I also think the main arguement regarding Sotomoyor in the Riccci is not the “poor white guy” but instead what appears to be an Appeals Court apprehensive to dicuss the case. Therefore punting the issue to the Supreme Court.
Sigh. If a person can’t figure out that you need three thirty-foot hoses to span a length of ninety feet, do you think that this question should be discounted if the person who got it wrong is a member of a minority?
Please. I’m trying to be civil. Don’t be oppositional. Now, do you think that this question is relevant to a firefighter’s job? If not, why was it on the test?
Things get a little more clear-cut when there are specifics, eh?
“Indeed, human society is rife with different groups holding more power than another;”
It’s perfectly possible to be powerless and racist, or powerful and not racist, who’s got power has precisely squat to do with who’s racist. Racism is an attitude, not a power relationship.
The problem here is this invocation of history, to justify fresh injustices against people who weren’t part of that history. Which only makes sense if you regard specific people as mere instances of their racial groups, to be treated on that basis, and not on their own merit.
To be treated according to the color of their skin, not the content of their character, one might say…
“Racism is an attitude, not a power relationship.”
Completely wrong. In your world, there’s no such thing as unconscious racism, apparently.
Racism is an attitude, not a power relationship.
Wrong. Bigotry is an attitude. Racism is a power relationship.
The problem here is this invocation of history, to justify fresh injustices against people who weren’t part of that history.
And yet the same groups of people tend to both benefit and suffer directly because of those past injustices. This has been explained to you repeatedly. That you refuse to understand it is . . . interesting.
To be treated according to the color of their skin, not the content of their character, one might say…
Ah, nothing sadder than a white dude trying to claim the mantle of Martin Luther King. MLK would not have agreed with you, to put it very, very politely.
It’s hard to be sure without having the test in front of us, but I get the distinct impression that punting is what happened all up and down the line. I could very easily see a situation where the results of this test came back in a way that reflected very badly on a minority group. So rather than stick to their guns, or retest those who didn’t pass, the board punted. Which was fine, until somebody who thought he was unfairly being cut out reared up on his hind legs and sued. And when it became an issue in the courts, they punted as well.
Folks, sometimes when a group of people do very badly as a distinct minority group, it has nothing to do with ‘discrimination’ and everything to do with the fact that these individuals are just bad representatives of their minority.
As Brett says (I’m surprised I agree with him) “But a test which says that one particular set of black people cannot be good fire-fighters is NOT clearly a hopelessly flawed test.” Is it possible that this is the case? You betcha – I could tell you stories about those East St. Louis kids that would make your toes curl. And no, I’m not talking about anything lurid like fighting or drugs or whatever; I’m talking about straight-up academics.
Going back to an earlier comment:
If this is really what happened, if these people are screaming about bias where no such bias exists or was intended to exist, or was never even thought to exist until the results came back, and if Sotomayor really thought that it was better overall to uphold ‘a principle of the law’ and let some innocent guy take it in the shorts, then I would be much less disposed to seat her (assuming it was up to me, of course!)
ScentOfViolets: I don’t think that knowing that it takes three 30′ hoses to reach 90′ is too much to ask.
That said, the law holds that any test that has a disparate impact is presumptively illegal, period. It doesn’t matter what you or I think of the test. The ‘presumptively’ matters: an employer can rebut this. But when a test has this kind of disparate impact, the employer has to do something: scrap the test and give a new one, justify the test, something.
In 1860 America, slaves were slaves, and “white” people were not, regardless of anyone’s “attitude.”
In 1954, in Southern states, “black” people still hard to ride in the back of the bus, and used “colored people’s” facilities, if there were any, regardless of anyone’s “attitude.”
I already pointed to Project Implicit, Brett. Try not ignoring links, or science, or facts, please.
Do you actually seriously believe that the only kinds of bias that exist are conscious biases? Is that seriously what you’d try to persuade people is true?
And let us know what your test results are, if you’d be so kind. Thanks.
I don’t want to get into a big pissing match here, so let’s be civil. But I thought racism had to do with unduly attributing characteristics to people based on their (perceived) race, whether consciously or not. I didn’t know power was a necessarly component. I also think of racism as one form of bigotry, which also includes sexism, agism, and what have you. Though I tend to think of bigotry as being more negative or hateful. It might be racist to assume that a black guy is a good basketball player, but it’s not particularly hateful. Bigotry would be more along the lines of thinking of someone different from yourself as being somehow inferior or of less worth.
First, let me say again that I don’t know what was on this particular test, merely that if the setup was the same as in St. Louis, then somebody been done wrong.
Now, yes, I got that the first time, Hilzoy. But Ricci is a private citizen, yes? How can the law as you have stated it apply to him? In fact, isn’t his complaint essentially that the city should not have scrapped the test on the grounds that it was ‘discriminatory’? What am I missing here?
Er, I tried this implicit association test, and it says that these results are for entertainment purposes only. That being said, I’m white and this test stated that I moderately prefer black people over white, but that I strongly prefer Obama to McCain. Despite the fact that I put down on the sheet that I moderately prefer white people to black.
Imho, this is a terrible test. I can’t recognize faces for diddly for some reason, so I have to go by other cues . . . one of them being color. As you can probably guess, the first part of the test was in black and white, the second in regular RGB.
“Er, I tried this implicit association test”
Which one?
I clicked on the first one on your previous link, which was the top one in this one.
Considering it was a test aimed at people who were already firefighters, designed to classify people for eligibility for promotion why do I get the feeling that rudimentary math was not a significant part of it?
I had a student once who was a senior firefighter and a trainer at various academies in the region. Awesome guy. Anyway, there’s a lot of stuff to learn at the higher levels: how to deal with hazardous materials, some practical chemistry, familiarity with building codes. The guys who move up the ranks are still running into burning buildings, but there really is a lot of other stuff besides brute courage involved.
Specifically in the New Haven case, I do wonder whether there wasn’t some fear of backlash on the part of the city. New Haven is famous for having a really divided and mutually suspicious town-gown relationship, with the “town” part being largely poor and black. Still, if this part wasn’t argued in the original trial, I suppose nothing could have been done on appeal.
“and it says that these results are for entertainment purposes only”
Actually, it says “The results are provided for entertainment and educational purposes only.”
“I clicked on the first one on your previous link, which was the top one in this one.”
What “first one”? There are two links at the top of this page: “Demostration” on the left and “Research” on the right. There is no “first one.”
If you clicked on the left link, you go to “IAT Home,” and if you then click on “Go to the Demonstration Tests,” you’ll go to “Preliminary Information,” and if you then click on “I wish to proceed,” you’ll then go to the page where you can choose any of the fifteen tests.
If, on the other hand, you clicked on the initial right link, “Research,” you’ll, after registering, be sent to a random pick of one of the fifteen tests.
So, again: which test did you take?
Can some of the better informed folks here explain the role of the pretext/reason distinction in this kind of case? If the city was very likely to be sued and lose, as seems to be agreed, then they *had* a reason, objectively speaking, to scrap the test; why should the law need to explore the possibility that maybe, deep down in their secret hearts, something else was really doing the motivational work? Shouldn’t the courts presume that rationally defensible decisions are, in fact, rationally defensible?
No doubt I’m being naive here.
Let me tell you (noone specific) that innumeracy and obvious lack of reading skills can be easily found even among (advanced, not beginner) students of hard sciences. During my PhD (chemistry) I helped in marking written exams. I had to conclude that a significant number of students were dyslexic and/or could not count to ten and/or not familiar with the German language (and it were usually not the foreign students that showed these weaknesses).
Apart from that many found no problems with results of their attempts at math that were several orders of magnitude off.
“I didn’t know power was a necessary component.”
It’s not. Racism is just that subset of bigotry which is bigoted with respect to race, rather than gender, religion, or what have you. But it’s become popular among some people to insist that power is a necessary component of racism, because it enables them to deny that particular minority groups can be racist. The claim has no other purpose, so far as I can tell.
The pretext/reason distinction is this:
New Haven had a valid purpose for running the test. There’s no particular reason to believe that the test didn’t actually serve this purpose. Having given the test, they then abandoned it.
The reason they abandoned it was because it didn’t produce their desired racial distribution. This is an improper motive.
The pretext is that they abandoned it to comply with title VII. This is a pretext because the 80% rule is only presumptive, all they had to do to over-ride it was to provide evidence that the test was legitimate. And one may safely presume that they thought the test was legitimate, or they wouldn’t have used it in the first place.
The testing company who designed the tests spent plenty of time demonstrating the validity of these tests, which demonstrates in a very scientific sense that they were related to the job performance. Specifically, they could pull and out show a correlation between scores on the test and rated performance on the fire-fighting job.
There seems to be a misconception that the tests were solely written tests, but that is not true. The written portion of the test was weighted 60%, and the oral examination was weighted 40%, as specified by the collective bargaining agreement the firefighters negotiated beforehand. There was a 2 to 1 stacking of the selection of those examiners in favor of minorities to the point they had to pull in out-of-state firefighters to administer the more subjective ratings on pertinent qualities like leadership & courage.
There has never been a valid and reliable test of job performance, in any profession, that has not violated the EEOC’s guidelines. Typically, what other civil service officials in charge do, is establish separate rankings for each ethnic group of interest, and dole out promotions so that the top 5 whites get the job, the top 5 African-Americans get the job, and so on, because that’s the only way that works. Or they use a watered-down test that is so easy that it passes everyone, and use “discretion” to assign the promotions, or in Ricci‘s case, don’t promote anyone at all for five years. Even in those cases, fewer blacks than whites pass.
“Maybe you should ask what the judge would have to embrace to earn the title, “fiery” conservative, since that’s what I denied were on the Court.”
So asked.
Having just read the thread forward from my last comment, I note that nobody appears to have any freaking idea what was actually on the test. So, maybe hollering about three lengths of hose is kind of beside the point.
Also, from the little bit I know about the case, the question of whether the test itself, or the behavior or underlying attitude of the New Haven FD, were racist, in either direction, doesn’t seem to have much to do with the legal decision with which Sotomayor agreed.
So the affirmative action argument, interesting though it is, appears to be relevant only in the sense of providing part of the context in which the actual legal issue was raised. But it wasn’t a substantial part of the legal question itself.
I enjoy a good rant as much as anyone, and I’m not trying to rain on anyone’s parade, but as regards Sotomayor’s qualifications for the SCOTUS, it seems to me that the affirmative action aspect is kind of irrelevant.
You are mistaken russell. A plethora of constitutional issues were raised by the case, as a result of perceived racist and discriminatory behavior of the New Haven FD, and Sotomayor shirked her legal duties by issuing an unsigned opinion. The affirmative action aspect is very relevant.
Wow, the testing company stuck up for its own test? Shocking!
I think we can all agree that the decision to dismiss the case on summary judgment, without a trial, was really kind of suspect. There do seem to be fact issues (the validity of the test, for example) which should have gone to the jury. It seems that the city, for whatever reason, didn’t defend the validity of the test. Maybe the City legal team f&&ked up, somewhere in the pleadings. I think the Supremes will likely reverse,though.
As to Sotomayor, the most that could be said is that she went with the flow and punted on a tough decision.This seemed to be what Cabranes said, and his blistering dissent, he made it likely that the Supremes would notice that the Supremes would take notice and grab the case. That Cabranes has some cojones, no :-).
This interpretation isn’t flattering to Sotomayor, but it hardly disqualifies her from consideration for the Supreme Court.
“I’m trying to get my head around this but aren’t those two the exact same thing?”
Apparently a black reverend, Boise Kimber, was a major vote getter for the mayor. He was allegedly disruptive at the civil service board’s meetings and stated there would be “political ramifications” if the board certified the test results and that if “not enough blacks” made promotion no whites should. Also, New Haven had apparently been slammed by the Connecticut courts for political patronage in violation of the civil service laws before this.
“It’s amazing how schools counter Asian enrollment by focusing on “external” extracurriculars to raise their white enrollment (but the conservatives scream bloody murder when that same logic is applied to other minority applicants)).”
I, for one, salute Asian enrollment. I attended a university with a high percentage of Asian Americans and Asians and appreciate the hard work and dedication they typically bring to the classroom. I’m not aware of conservatives being against Asian American enrollment. In fact, IMO they are used most often as an example of a minority that is “overrepresented” in spite of minority status and past wrongs.
“Finally (with regard to the Wise Latina comment), let me tell you that my experiences being called a chink or a gook during my childhood does make me more qualified to discuss racism than those white males who were the ones doing the name calling.”
Agreed to a (great) degree. All things being equal, I think having another latin american or other minority on the court is a good thing.
“Especially the one person who proposed the scenario if standarized tests favors black”
I don’t think this was a standardized test a la the SAT. I couldn’t find a copy online, but apparently the questions were included in Ricci’s appendix.
From the district court opinion, it looks like the company that came up with the test went to great lengths to make sure all questions were directly relevant to the duties of the positions at issue. They eliminated questions that might benefit those that had additional training that not all candidates were able to attend (especially minority candidates), that sort of thing. They had the test reviewed by outside firefighting experts to make sure the questions addressed stuff that all lieutenants and captains should know. And they made the study materials available and pointed out the sections that would be in the test.
“the employer has to do something: scrap the test and give a new one, justify the test, something.”
But the employer didn’t validate the test.
The plaintiffs wanted a validation test and requested it at the hearings. Some on the other side wanted a validation but some did not. Supporting overturning the results at the hearings were two experts that apparently didn’t study the exams. The basic defense was that testing was an inherently flawed way to promote, even though it had been used previously.
I understand the presumption on disparate impact. It certainly should require the employer to validate the test. The problem is where the test having been carefully constructed to avoid disparate impact is thrown out simply due to disparate impact WITHOUT validation.
How do you argue you have a “good faith belief” that certifying the test would violate Title VII without validation? While disparate impact raises the flag, so to speak, validation would at a minimum resolve the legitimate fears from minorities that the test was flawed in some respect.
The statistics are interesting. Seventy-seven applicants took the lieutenant exam, of whom 43 were white, 19 black, and 15 Hispanic. Thirty-four passed, of whom 25 were white, 6 black and 3 Hispanic. Hispanics ranked 27, 28 and 31; blacks ranked 14, 15, 16, 20, 22, and 24.
Forty-one applicants took the Captain exam, of whom 25 were white, 8 black, and 8 Hispanic. Twenty-two of those applicants passed, of whom 16 were white, 3 black, and 3 Hispanic. Hispanics ranked 7, 8 and 13; blacks ranked 16, 19 and 22.
It would be interesting to see what the statistical probability would be of this happening for non-racial reasons. And I’d love to see the exam questions.
Sigh. Is English your second language? I chose the ‘demonstration’ and clicked on the ‘featured task’. The Obama-McCain one, I believe it was. And since I am answering your question, would you please have the courtesy to answer mine rather than ignoring it:
This is not a trick question, it is not to trap you.
“I enjoy a good rant as much as anyone, and I’m not trying to rain on anyone’s parade, but as regards Sotomayor’s qualifications for the SCOTUS, it seems to me that the affirmative action aspect is kind of irrelevant.”
I disagree. It is one of the more important discrimination cases to come down recently. And Sotomayor’s “punt” is legitimately troubling because by virtue of no opinion we cannot see if it was simply a punt or whether it was a deliberate attempt to sweep the case under the rug. And add to it denying the firefighters their day in court.
Maybe. You’ll note that I explicitly said this already though. If the questions on this test were similar to the ones on the St. Louis firefigters examination, and large numbers of people failed because of the lack of extremely basic numerical and literacy skills, then I’d say there’s a problem.
If that was the case, then I’d say there was a problem.
Look, I’m not particularly liberal. However, I don’t think that affirmative action is all that liberal. All other things being equal, if a black applicant and a white applicant have the same scores, I’d say that the hire should pretty much always go to the black applicant. I’ve got no problem with that at all.
But if what is going on is a straight quota system, and if applicants are still hired even if they fail some pretty noncontroversial tests – basic literacy, etc – then that is, imho, a pretty bad setup, one which furthermore validates the standard ‘conservative’ talking points. That’s not helping anyone, and if these jobs put unqualified people in a position where their decisions mean life or death for somebody else, someone is guilty of criminal negligence.
One hopes that it is merely passing the buck (and I suspect that’s exactly what happened.) If her motivation was to promote some sort of false equality, maybe it does. I certainly couldn’t say from this one example and would give her a pass based on judicial cowardice.
But it’s become popular among some people to insist that power is a necessary component of racism, because it enables them to deny that particular minority groups can be racist.
I can see this if “racism” is being used narrowly to mean “institutional racism.” Otherwise, I think anyone can be racist in the more general sense. In fact, I think everyone is to one degree or another, consciously or not. I do have to agree with Gary on the point that you can’t simply switch white and black, given our history. But I don’t think that has any bearing on who can or can’t be racist (if anyone is even trying to say that it does).
“But it’s become popular among some people to insist that power is a necessary component of racism, because it enables them to deny that particular minority groups can be racist.”
You’re willfully claiming this is true of people here when you know full well that the last time and the last several times we went round on this, I and others said this was not what we believed at all.
What we assert is that racism unacompanied by power to harm, racism of the weak versus the powerful, is vastly less damaging than racism of the powerful versus the week.
Claims that these two types of racism are mirror images of each other are absurdly untrue. That’s what we assert: not that racism doesn’t exist by “black” people, or any other minority.
Kindly don’t lie about what people here claim, when you’ve been informed over and over again that you’re making false claims. Thanks.
@SOV, gary
I think you guys should just let it go on the IAT test issue, or take it to email. SOV, I believe Gary did answer your question up thread
@bc
Thanks for the insights re the test at issue here. I think that the lower black and Hispanic scores could likely be explained by their getting worse elementary and secondary school education than whites-a contention supported by SOV’s anecdotes re East St. Louis schools. I expect that New Haven public schools were a little better, but they are probably not that good.
Maybe the way to a better promotions test is to emphasize much more the physical , practical part of the test and not the academics. There will be a need for some academic qualifications at the captaincy and lieutenant levels, however, pace jackmoron.
Anyway, there’s a lot of stuff to learn at the higher levels: how to deal with hazardous materials, some practical chemistry, familiarity with building codes. The guys who move up the ranks are still running into burning buildings, but there really is a lot of other stuff besides brute courage involved.
I am kind of mystified as why the City didn’t even TRY to defend their test. Can someone explain why they did not do this?
“And since I am answering your question, would you please have the courtesy…?”
This after “Is English your second language?,” multiple sighs, and the like.
I think not. I’m not your performing monkey, and I have no interest in debating topics I have no interest in debating. Have your argument with someone who is interested.
The test you might want to try is this one. Or not, of course.
When you say that “Imho, this is a terrible test,” I’ll have to say that I find the research results more convincing than your opinion.
Thanks for taking the time to do this, Hilzoy. This is very helpful.
Hilzoy “But when a test has this kind of disparate impact, the employer has to do something: scrap the test and give a new one, justify the test, something.”
More specifically the employer has to do something which is not in itself racially discriminatory against any of the other firefighters.
Merely throwing out the test is not proper as it may be improper racial discrimination against the employees who did well on the test. That is precisely what the case you cite (Bushey) says. The proper thing to do is justify the test. If you can’t justify the test (because there is no validation for instance) then you can scrap the test, because it isn’t valid. By scrapping the test without discovering that the test isn’t justified, you open yourself up to charges of discrimination against those who did well on the test.
The issue before the court in Ricci is NOT whether the test was valid, but whether or not throwing out the test without investigating whether doing so would be discriminatory against those who did well ends up being discrimination under the Act.
The position of the City appears to be that they could have defended the validity of the test, but that they would have gotten sued anyway which would be really expensive to deal with.
The problem with that position is that by not investigating the validity of the test (and in the process finding it invalid for whatever reason), it is very difficult to show that they are not discriminating against those who did well on the test. This properly opens them up to a Title VII fight over their apparent discrimination against those who did well on the test. Basically Title VII puts them in a lose/lose situation (unless they investigate the test and find actual reasons why it ought to be considered invalid). But the fact that the law puts you in a lose/lose situation isn’t a defense (and in fact happens plenty).
Stonetools: “I am kind of mystified as why the City didn’t even TRY to defend their test. Can someone explain why they did not do this?”
It depends on when you are asking the question. They didn’t try to defend the test in the court case itself because defending the test doesn’t help them. In fact, at this point successfully defending the test creates liability because it makes it more likely that they impermissibly discriminated against those people who did well on the test. So it actively works against their position in the case to defend the test.
Their decision not to try to defend the test before the court case was a calculated risk. They didn’t defend the validity of the test because they didn’t think it would help. Not that they wouldn’t WIN, but that winning would be more costly than just throwing out the test because even if the test was completely valid for the job, they felt they were likely to get sued. It opens them up to being sued the other direction because it creates the appearance of discriminating against those who did well. But they guessed that they would be able to avoid that.
“What we assert is that racism unacompanied by power to harm, racism of the weak versus the powerful, is vastly less damaging than racism of the powerful versus the week.”
I’m quite willing to agree that relative power relationships can make one person’s bigotry matter more than another person’s, whether the subject of that bigotry is race or religion. But that’s rather different from claiming that racism IS a power relationship.
And when I say it isn’t, and you respond “Completely wrong”, that’s what you’re asserting.
Also, and let’s be clear, whether racism matters depends on actual power relationships, not nominal ones assigned on the basis of group membership. The racist who spikes a merit based test because he doesn’t like the race of the people who pass it is demonstrating quite unambiguously his greater power relative to the poor sods who passed the test, then got passed over, just because they had the wrong skin color.
“I think that the lower black and Hispanic scores could likely be explained by their getting worse elementary and secondary school education than whites-a contention supported by SOV’s anecdotes re East St. Louis schools.”
And I wonder how much they could be explained by simply looking at whether the candidates were from single parent households.
Actually, he didn’t. He took care to leave himself some waffle room. And if you look further:
So I suspect very strongly that Gary is in fact on this issue a knee-jerk liberal who will excuse the poor performance because of racial discrimination. That’s a horrible attitude, and a horribly damaging one for his politics.
Oh, I also took the test he is indicating in this post. Took it last night, as a matter of fact.
“So I suspect very strongly that Gary is in fact on this issue a knee-jerk liberal who will excuse the poor performance because of racial discrimination.”
As I said, you have an active imagination.
No, it’s after you have, multiple times tried to duck it. Look, I’m not trying to trap or trick you, and when you asked me a question, I answered. I even put myself out to take your test. Why you think courtesy is a one-way street is beyond me.
If you’re not interested, why are you even posting on this thread?
Er, as I’ve said three times now, that’s the test I took. And I’ll repeat, despite putting myself down as slightly preferring whites to blacks in their little box, the test indicated that I preferred blacks to whites – precisely the opposite. Personally, on the preference thing, they should have added the category “I don’t know”. Because, honestly, I don’t. There is also the fact that I am terrible with faces and usually rely on other tics to identify individuals – like, oh, say, color. Which is kind of hard to do when your silly test is in black and white on the first part.
Are we done here? I sure hope so.
“I’m quite willing to agree that relative power relationships can make one person’s bigotry matter more than another person’s, whether the subject of that bigotry is race or religion. But that’s rather different from claiming that racism IS a power relationship.”
No, it isn’t. You seem to think that “a power relationship” can only be defined in a single way, which isn’t true at all, of course. But all relationships are power relationships (among many other elements, of course), wherein either one person or class has more or less or equal power to the other person or class.
“Also, and let’s be clear, whether racism matters depends on actual power relationships, not nominal ones assigned on the basis of group membership.”
That’s true, save that what you want this to mean is that we should feel sorry for the poor oppressed white folk who suffer so because of all the racism directed at them in America today. The oppression of white people (and gun owners) is a concern you constantly bring out. Other oppressions: not so much.
And I’d say that’s a problem. Particularly if the facts turn out to be, shall we say, unambiguous.
Thanks for the explanation, sebastian. I also actually used the Google and came across this helpful WSJ article on the case.
http://online.wsj.com/article/SB124354041637563491.html#articleTabs%3Darticle
The more I learn about the case, the more reasonable the district court’s ruling (and Sotomayor’s upholding of it) looks.
The problem is really that selection process is so quirky that whether the test is valid or not wouldn’t solve the problem.
its also important to realize that the black and Hispanic applicants who were’nt selected are people too- and that they are just as entitled as Ricci to a fair selection process.
That would be my thinking. It’s not the racial component, it’s the lousy education. My personal belief is that the single parent issue and the lousy education/schooling is all one issue, actually.
“Also, and let’s be clear, whether racism matters depends on actual power relationships, not nominal ones assigned on the basis of group membership.”
This is a very important general point when dealing with bigotry. If a black DA in Louisiana fires staff employees just because they are white original obsidian wings discussion here, eventual outcome here that is a racist in a position of power using his power against people on the basis of race, even if he is black and his employees were white.
“its also important to realize that the black and Hispanic applicants who were’nt selected are people too- and that they are just as entitled as Ricci to a fair selection process.”
Absolutely. But we don’t ever get to find that out in this case, because none of the parties are in a position to really defend the test.
“The proper thing to do is justify the test.”
“There are various things an employer can do to show that a test that has a disparate impact on some racial group is nonetheless OK. New Haven did not do any of these things, though it does seem to have spent a fair amount of time trying to figure out what accounted for the disparate impact, without success. “
It strikes me that if New Haven was unable to explain why the test yielded such disparate results, it might be difficult to then explain why, in spite of those disparate results, the test was nonetheless valid and should therefore not be scrapped.
In other words, it sounds like they did some homework trying to figure out what was going on, but were unable to do so. And so, they scrapped the test.
I understand that scrapping the test without first demonstrating that it was invalid opens New Haven up to the charge of reverse discrimination. But if you can’t explain why the test yielded different results in the first place, how do you then demonstrate that the reason for the different results was either legitimate or not?
I realize we’re discussing this in somewhat of a vacuum because we (or at least I) do not have all of the facts in hand, but from hilzoy’s characterization, it strikes me that New Haven did not simply throw the test out because they didn’t like the result. It appears that they did some due diligence to understand what happened and why.
Unless, as is quite possible, I’m misunderstanding something.
“It’s not the racial component, it’s the lousy education.”
The problem is that lousy education isn’t uniformly distributed on a racial basis, which means that a non-discriminatory, perfectly meritocratic hiring and promotional system is going to (On average!) violate that EEOC 80% rule.
The only way for most companies to comply with that rule, is if some of them deliberately engage in racial discrimination to make the quota.
And when I say it isn’t, and you respond “Completely wrong”, that’s what you’re asserting.
It may behoove you to remember to whom you’re responding from post to post, since you’re now berating Gary for something I said. This does not help the case for you not being very bright.
Or does your rock-ribbed belief that people are individuals and not just representatives of groups simply fall apart when dealing with people who disagree with you politically?
“But if you can’t explain why the test yielded different results in the first place, how do you then demonstrate that the reason for the different results was either legitimate or not?”
Well they can theoretically describe why the test yielded different results. It could be that the individuals who took the test weren’t good at the things being measured. That just isn’t an acceptable answer to many here. But it could in fact be the correct answer.
Under Title VII the question is whether or not the employer can “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity”.
The problem is that the City couldn’t find evidence that the questions were not job related and consistent with businesss necessity. That is why Ricci has a case. If the City had found that the questions were not job related Ricci would have no case.
But again, these are all jury questions. Dismissing on summary judgment isn’t appropriate.
a non-discriminatory, perfectly meritocratic hiring and promotional system
By the way, there is no such thing as this in any organization, public or private, anywhere in the United States.
“It appears that they did some due diligence to understand what happened and why.”
I don’t think they really did. It looks to me like they avoided it. But assume that they did. If they did, we can be certain that they did not find that the test was non-job related and they did not find that it was inconsistent with business necessity.
Because if they investigated and found those things, Ricci wouldn’t have a case in a very different way than actually played out.
But all relationships are power relationships (among many other elements, of course), wherein either one person or class has more or less or equal power to the other person or class.
Then what’s the point of modifying “relationship” with “power?” It’s like referring to people as “human people.” Or maybe not. I can’t quite tell what you guys are arguing about anymore. Then again, maybe it’s none of my business.
“If a black DA in Louisiana fires staff employees just because they are white original obsidian wings discussion here, eventual outcome here that is a racist in a position of power using his power against people on the basis of race, even if he is black and his employees were white.”
Of course it is, Sebastian. But what are the comparative percentages in America of “whites” suffering under “black” racism, versus “blacks” suffering “white” racism? 99% to 1%?
But some people’s concern in writing runs about 99% to 1% in the other direction. Isn’t that curious?
“It may behoove you to remember to whom you’re responding from post to post, since you’re now berating Gary for something I said.”
I actually did write “competely wrong” in response to Brett, here at May 28, 2009 at 09:04 PM; you wrote “wrong.” Easy to confuse.
“It strikes me that if New Haven was unable to explain why the test yielded such disparate results,”
I think we have to distinguish between “unable to explain”, and “unwilling to explain”. New Haven didn’t want a racially disparate result, regardless of the reasons for it, so they had no motive to produce an explaination which might have forced them to promote on the basis of the test. Said explaination might even have been something that would have opened them up to further liability, such as, “Our applicant pool was produced by racially discriminatory hiring.”
“Then what’s the point of modifying “relationship” with “power?””
One does so when the power element is what’s important. Which is the case when racism hurts someone, as opposed to merely being irritating.
It’s rare in America for “black” racism towards “whites” to seriously hurt the “whites.” The contrary is not true. That’s because in most cases, it’s the “white” folks that have the majority of the power and privilege.
This is a simple, and should be obvious, point, but there’s a whole mass of people following an ideology, of whom Brett is a fine local example, dedicating to trying to muddy this point, and trying to paint a picture in which racism either way is just as damaging in all cases. That’s not true. But such folks will do their best to fuzz that up, and will always focus on how poor “white” people are suffering so under America’s brutal racist schema.
And these are the folks who like to claim others play victim.
“It may behoove you to remember to whom you’re responding from post to post, since you’re now berating Gary for something I said.”
Phil,
“”Racism is an attitude, not a power relationship.”
Completely wrong. In your world, there’s no such thing as unconscious racism, apparently.
Posted by: Gary Farber | May 28, 2009 at 09:04 PM”
…but there’s a whole mass of people following an ideology, of whom Brett is a fine local example, dedicating to trying to muddy this point, and trying to paint a picture in which racism either way is just as damaging in all cases. That’s not true. But such folks will do their best to fuzz that up, and will always focus on how poor “white” people are suffering so under America’s brutal racist schema.
I think there’s at least a possiblity that some of the people you’re describing actually see things that way. It’s not that those people are trying to fuzz things up so much as that things are fuzzed up in their heads already. I don’t know where Brett stands as far as that goes.
In your world, there’s no such thing as unconscious racism, apparently.
Why unconcsious racism, btw? I understand what you mean by that, Gary, but I don’t get what it has to do with Brett’s arguments, which you were responding to.
“I think we have to distinguish between “unable to explain”, and “unwilling to explain”.”
My comment was based on this statement of hilzoy’s:
“it does seem to have spent a fair amount of time trying to figure out what accounted for the disparate impact, without success.”
To me, spending a fair amount of time trying to figure something out without success qualifies as “unable” as opposed to “unwilling”.
Unless we’re talking about two different things and I’m confusing them, which is not out of the question.
I don’t know more about the details, so I can’t defend hilzoy’s characterization. Feel free to explain why you think it is incorrect.
I’ll ask you to do better than this, however, which strikes me as something between a bald assertion and mind reading:
“New Haven didn’t want a racially disparate result, regardless of the reasons for it, so they had no motive to produce an explaination which might have forced them to promote on the basis of the test. “
How do you know what the folks in New Haven preferred, regardless of the reasons for it?
I’m not saying they aren’t a band of white-hating racialist commies, I just don’t see the evidence for it in anything you, or anyone else, has said.
The closest you can come to that is “didn’t want to be sued under Title VII”, but I think that was stipulated in the case.
a non-discriminatory, perfectly meritocratic hiring and promotional system
By the way, there is no such thing as this in any organization, public or private, anywhere in the United States.
Unlike the traditional Chinese civil service exam – they invented it, Europeans only borrowed it – based on memorization of the Confucian classics and the ability to write “eight-legged essays” on any point in any of them.
Useful for all administrative positions short of the imperial family itself. Guaranteed capacity to deal with all problems that might arise in any governmental situation whatsoever. Open to anyone (any male who had the resources to study solidly for about three years before the test). Honed to perfection over centuries of use. So reliable that the French continued to use it in Vietnam even after the Chinese had abandoned it!
They just don’t test like that any more. ;}
It’s not that we think racism both ways is producing equal amounts of damage. That’s actually quite beside the point. It’s that we think racism is wrong in BOTH directions, and see at least some of the efforts to repair the damage of past racism as nothing more than present racism.
“It’s that we think racism is wrong in BOTH directions, and see at least some of the efforts to repair the damage of past racism as nothing more than present racism.”
Past?
Not saying affirmative action is good, bad, or indifferent. I doubt there’s a one size fits all answer to that.
I am saying racism is far from gone.
It’s not that we think racism both ways is producing equal amounts of damage. That’s actually quite beside the point. It’s that we think racism is wrong in BOTH directions, and see at least some of the efforts to repair the damage of past racism as nothing more than present racism.
Gotta mouse in your pocket?
Again, I don’t think there is actually much evidence of this, but I want to point out the dog that didn’t bark if you assume that they did.
If they tried to figure out what caused the disparate impact, they definitely did NOT find that:
A) the questions were unrelated to job function;
If they had found that, they would be relying on that fact, not “we were afraid of a lawsuit so we threw the test out”.
B) inconsistent with business necessity;
If they had found that, they would be relying on that fact, not “we were afraid of a lawsuit so we threw the test out”.
C) consisted of racially unfair questions;
If they had found that, they would be relying on that fact, not “we were afraid of a lawsuit so threw the test out”.
Now as it turns out, my read of the case is that they didn’t even seriously investigate the matter before they panicked and threw out the test. But IF they did, they definitely did not find any of the above things that would have let them easily prevail against Ricci in this case (and certainly not to a level which which allow summary judgment).
“Why unconcsious racism, btw? I understand what you mean by that, Gary, but I don’t get what it has to do with Brett’s arguments, which you were responding to.”
Because Brett, like the lot of people whose line of argument is that no one living was a slave or ownded slave, so racism is pretty over and non-existent nowadays, except for that perpetrated upon white people by evil affirmative action programs, denies that racism that isn’t the most simple and obvious kind, an expression of conscious hatred in an act that hurts someone, exists.
When, in fact, most racism in contemporary society plays out from people’s unconscious, or consciously denied, prejudices and biases. Most racism today doesn’t come from people cackling “heh, heh, heh, I sure hate the blacks folk! I wanna go beat me up some of them!” It comes from people simply, without realizing it, tending to be “more comfortable” in renting to “white” people, or giving them jobs, or letting them wander through an expensive store without suspecting them of being a shoplifter, and so on.
But in Brett’s world, and the world of those who think like him, this sort of utterly common racism doesn’t exist. (Ditto sexism, incidentally.)
Keep in mind that Brett and others here have been arguing these issues here for a couple of years now. 🙂
“I am saying racism is far from gone.”
And I’m saying that, so long as the treatment for it is more of the disease, it never will be gone. You can’t get rid of racism by means that implicitly endorse the sort of treatment of individuals as mere instances of a group which racism is based on.
Gotcha. Thanks, Gary.
In the end, the only way we’ll get rid of racism is by establishing the principle that people get treated as individuals, on their own merits, PERIOD. That’s not consistent with trying to remedy past wrongs on the backs of people who didn’t commit them.
For what it is worth, re the implicit tests, I apparently have a strong implicit affinity for Judaism and no particular implicit affinity for homosexual/heterosexual.
“In the end, the only way we’ll get rid of racism is by establishing the principle that people get treated as individuals, on their own merits, PERIOD.”
First: I will advance the radical proposal that we will never get rid of racism. It’s always been with us, humans appear to be prone to it, and I seriously doubt there is anything our government, or any government, can do to eliminate it.
Things we *can* do through public policy are provide very strong incentives for people to not act on whatever racist inclinations they are prone to, and to provide remedies for acts of racism that do occur.
I’m not saying these are things we *must* do, I’m saying these are things we *can* do.
I share your desire for all people to be treated as individuals, on their own merits. I’d be quite happy for there to be very strong incentives to be put in place to discourage folks from not doing that.
In other posts discussing affirmative action, I’ve stated that I’d be in favor of simple, straightforward legal punishment for anyone who discriminates against others on the basis of race, ethnicity, gender, sexual orientation, or any similar personal attribute. Jail, or personal responsibility to make good the damage in full. I’d actually prefer the latter.
Where we part ways is that I also support public policy that seeks to provide remedies for racist actions in the present.
Minorities are not disadvantaged solely, primarily, or in the vast majority of cases even at all, because somebody’s grandpa had slaves. They are disadvantaged because other people treat them differently now, today, as we speak.
Affirmative action is not intended to be “payback” for the children, grandchildren, and great-grandchildren of people who were poorly used.
It’s intended to address the concrete, real-world, ongoing effects of the racism that continues to exist.
I don’t see it as an ideal solution. There isn’t an ideal solution. You might wish to make the case that, net/net, it’s no solution at all.
But the argument that it’s punishing people today for things done long in the past ignores the reality of present-day racism.
Also — Seb, thanks for your comments on the topic of whether New Haven did, or did not, their due diligence in validating the test, they are helpful.
Wait a second,
(slaps forehead)
Is Brett against affirmative action?
Who’d a thunk it?
Brett, the principle you so ringingly affirm is a wonderful thing. I’ll tell you what. When all white people in the USA start acting in accordance with that principle, then there will be no need for affirmative action. That’s fair, right?
Well , you get back to me when you can demonstrate this.Perhaps, you can, after all. I wish you luck.
I stand corrected re: the “wrong” comment. I stand by my other comments. I’ll also note that Brett is now on record as being in favor of ensuring that all public schools are equally well-funded rather than punishing poor children for how much their parents’ homes happen to be worth by giving them an inferior education.
I’ll also note that Brett is now on record as being in favor of ensuring that all public schools are equally well-funded
Sure, he wants them all to be funded at $0. 🙂
—
As people have pointed out, there are two separate questions here.
1. Was the district court opinion correct, given the law (as interpreted by the EEOC)?
2. Is the law (as interpreted…) reasonable?
It’s hard to focus on the first question without letting your opinion on the second get in the way.
Sebastian writes:
If you conceed all facts in dispute to the plaintiff (which you must do at the summary judgment phase) you are left with at least one crucial factual dispute that must be resolved by the jury: whether or not the litigation excuse was a mere pretext used to discriminate. That can’t be resolved by without factual inquiry.
Shipwreckedcrew echoes:
The plaintiffs were then entitled to a trial on the question of whether the reason was merely a pretext.
Anderson responds:
Only if they could show a genuine issue of material fact, not mere speculation. If shouting “pretext!” got you to a jury, there would be a lot more Title VII trials.
Can anyone point us non-opinion-readers to the alleged evidence in support of mere pretext?
As regards the narrow legal issue, this seems to me the crucial question. But considering that IANAL, I am quite likely wrong on this.
There’s another argument. Namely, even if the ruling is technically correct, it was irresponsible for the 3-judge panel to behave as they did given the importance of the case. But it would be a bit much to derail Sotomayor’s confirmation over a correctly decided opinion.
I’m sure you’re right, dj. The thing is, all Brett’s talk about “treating people as individuals, not as members of groups” only seems to come up when some poor white guy doesn’t get what he “deserves” on “merit.” Otherwise, Brett treats people only as representatives of their groups.
Take, for instance, politicians — Brett has stated repeatedly that they are “mostly sociopaths.” Now, Brett has also stated that he’s a hard determinist. As such, he must know that sociopathy is a disorder of the brain and requires a medical diagnosis. I hardly think Brett’s undergraduate training in biology qualifies him to make such a diagnosis, and certainly not from afar. He just figures “member of the group ‘politician'” = “sociopath” and treats them as such, not as individuals.
The same with “liberals,” “immigrants,” etc. Brett doesn’t care what their qualities and features are as individuals, just on their value as proxies for their groups. How often has he referred to commenters here as “you people” and expressed a single opinion to all of them?
No, this concern of his regarding merit and individualism manifests itself only in ensuring that white people get their due. Which is fine as far as it goes, but he should own up to it and not be so mealy-mouthed about it.
“a quote a system” “a quote system” aren’t those Bartlett’s?
All this talk about the 30 foot hoses and the fire 90 feet away is ridiculous.
Yes, it is terrible that people looking for a job can’t divide 9 by 3 and come up with 3.
But does the job really require this kind of math? Do firefighters measure how far away a fire is from their truck? I suppose they know how long their hoses are … they learn that in training.
But when they get to the fire, don’t they just sort of eyeball it and figure how much hose they need?
This is what judging tests is ALL about. Does the test test job-related skills … that’s the question. And showing that is a whole lot harder than people here think.
To my way of thinking, ALL employment “testing” should be job related, but the only ones the LAW requires to be job-related are those with disproportionate effects on a protected class. That’s Title VII law as intrepreted by the Supreme Court more than thirty years ago.
I’m thinking that the situation is that you have different lengths of hose, say 30′, 30′, 50′, and you have to get to two different spots on the same building, say 40 and 50 feet. If you tried the 30′ hose to reach around back, the fifty feet, you need to know that you should use the other 30′ hose, and not the 50′ one.
The number of hoses needed to reach 90 feet question doesn’t test for that, obviously. But I think it’s pretty obvious that this is a floor, not a ceiling; if you can’t answer the simpler question, the odds are you won’t be able to anwer the harder, more practical and real-life question either.
Do firefighters actually measure the distance to fires? I don’t think so. I’d like to think some sort of test of one’s ability to judge distances visually would be more useful.
“We’re close enough. Stop the truck…” and so on.