The case of Ricci v. DeStefano involved 17 firefighters who had taken the qualifications exam to become firefighters. All passed, all were white, but one Latino, and the city invalidated the test because they feared a racial discrimination lawsuit. The court found that this was essentially "reverse" racism and violated Title XII.
The ruling yesterday to overturn Ricci v. DeStefano was another bad decision in a series of bad decisions by the SCOTUS that will have implications for communities of color, women and poor people. Legal Momentum tells us why,
The Court created a new, more stringent standard for employment discrimination claims in striking down the New Haven Fire Department's attempt to ensure that its promotional exam did not discriminate against Black and Latino candidates. We believe that the standard articulated by the Court reflects a flawed interpretation of Title VII and is contrary to congressional intent.Irasema Garza, President of Legal Momentum, stated: "Employment discrimination continues to be a major problem. To this day, women and minorities remain egregiously under-represented in many employment sectors. Astoundingly, the Court's decision acknowledges this fact and yet requires employers to avoid policies and practices that would help to remedy this discrimination. This decision will make it far more difficult for women and minorities to get good jobs in fields that continue to exclude them, such as firefighting, and for employers to eliminate barriers that have proved discriminatory in their effect."
Further, as a supporter of Judge Sonia Sotomayor's nomination to the Supreme Court, Legal Momentum strongly disagrees with those who might use the Court's decision to imply that Judge Sotomayor and her colleagues in the Second Circuit erred in their ruling below. The Second Circuit panel of which Judge Sotomayor was a part acted with appropriate restraint in applying the precedent as it existed at that time. The matter before the Supreme Court involved issues of first impression and the Second Circuit's opinion was consistent with the views of four Justices on the Supreme Court as well as with the Equal Employment Opportunity Commission and the Department of Justice.
Also, what about the possibility that Alito was also racially biased in making this decision? As Adam aptly asks at Tapped, why is racial discrimination only considered an offense when it is women or people of color being biased against whites?
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This is my first comment on Feministing. I disagree with this post. Will I be flamed for that? I will be positive and imagine that the readers of Feministing are all nice people and will have a dispassionate, rational discussion with me rather than yell at me.
Anyway, the reason I disagree is twofold.
1.) They GAVE the pool of firefighters an exam with the intention of promoting some of them to fill vacancies for lieutenant and captain. Then they saw they had two few hispanics qualifying for the promotion and decided that NO ONE gets a promotion. I agreed with the dissenting opinion by Ginsburg that no one was ENTITLED to a promotion, but at the same time, it's not like they're suing because they didn't get a promotion. They're suing because they were essentially offered a promotion and then denied it because not enough hispanics go it. So there are these vacancies and qualified people to fill them - but the city was too scared to do so. That doesn't seem right to me.
2.) The other issue is whether or not you agree with affirmative action I think. My first point probably indicates to you, accurately, that I am NOT in favor of it. I mean, yes, I agree that the under representation of women and minorities in certain fields of work is disconcerting and I would love to see it rectified. I just don't feel that it should be done to the detriment of well-qualified people whose only crime is NOT being able to shift the balance for us. In my mind, I imagine other solutions (focusing on better education and perhaps funding programs that encourage women/minorities to seek these jobs) could and should be employed rather than simply giving them a handicap in employment processes.
So that's my thinking. Of course, I'm a 22yo white male who hasn't done much reading on arguments for or against affirmative action, which is the core issue here, is it not? So I welcome any calm, dispassionate, well-reasoned responses to my thoughts. Please don't flame me. I am the scared. Grammar fail intentional. Was trying to cutify self such that I am not the subject of attack. Agh. Okay well enough rambling, have at it!
Hint for you: Don't start your first posts at Feministing out with some insinuation that feminists are barbarians just dying to tear you apart for disagreeing with them, even if your points are rational. It's incredibly condescending and annoying. Just state your opinions and wait for agreement or disagreement.
I believe it is this kind of comment that he was afraid of. These boards tend to get fairly heated, both because of the anonymity of the internet and because the topics that are being discussed are controversial ones. It takes a lot of guts to post here for the first time (I would know, this is my first post as well).
It is certainly not fair to say that MJGabay thinks "feminists are barbarians." That implies a) that all Feministing posters are feminists, and b) that Feministing posters represent ALL feminists, and you and I both know that that isn't true. Flame wars are hardly unprecedented on this site, please try to respect the OPs wishes that this not become one.
I believe it is this kind of comment that he was afraid of. These boards tend to get fairly heated, both because of the anonymity of the internet and because the topics that are being discussed are controversial ones. It takes a lot of guts to post here for the first time (I would know, this is my first post as well).
It is certainly not fair to say that MJGabay thinks "feminists are barbarians." That implies a) that all Feministing posters are feminists, and b) that Feministing posters represent ALL feminists, and you and I both know that that isn't true. Flame wars are hardly unprecedented on this site, please try to respect the OPs wishes that this not become one.
People need to have thicker skins if they're going to talk about issues as sensitive as racism and reverse racism.
I'm not going to apologize for telling him he sounded condescending and implied that we are out of control.
"Will I be flamed for that? I will be positive and imagine that the readers of Feministing are all nice people and will have a dispassionate, rational discussion"
To you, this implies that all feminists are "barbarians just dying to tear you apart for disagreeing with them?" Really?
I interpreted the end of MJGabay's comment as an admission of privilege and potential bias, and an invitation to point out and correct said bias if any was seen. Really, I think that gives credit to the other readers here that they might be able to give a rational rebuttal, which he was open to. Not that we are "barbarians!"
Was it specifically the cutseyness at the end that offended you?
I for one can appreciate the desire for a rational discussion, and don't think that it's an unreasonable request at all.
"Will I be flamed for that? I will be positive and imagine that the readers of Feministing are all nice people and will have a dispassionate, rational discussion"
To you, this implies that all feminists are "barbarians just dying to tear you apart for disagreeing with them?" Really?
I interpreted the end of MJGabay's comment as an admission of privilege and potential bias, and an invitation to point out and correct said bias if any was seen. Really, I think that gives credit to the other readers here that they might be able to give a rational rebuttal, which he was open to. Not that we are "barbarians!"
Was it specifically the cutseyness at the end that offended you?
I for one can appreciate the desire for a rational discussion, and don't think that it's an unreasonable request at all.
It was this: So I welcome any calm, dispassionate, well-reasoned responses to my thoughts. Please don't flame me. I am the scared.
And you'll note that no one did flame him. I warned him he may want to check his tone, if indeed, he wants respectful dialogue.
There have been so many comments on this forum about the "check your tone" argument it's absurd. "Check your tone" has been recognized so many times as a form of silencing. Many of the POC on this forum regard it as a form of "shut up, Darkie" (their words, not mine) and I tend to agree with them, since having had the realization that I was prone to do it myself.
You also did nothing to actually answer his comment which brought up some good points.
Also, to answer your question from "where did I do that" here you go:
Don't start your first posts at Feministing out with some insinuation that feminists are barbarians just dying to tear you apart for disagreeing with them, even if your points are rational.
He had really started off by noting how adversarial this place is and was hoping for civil discussion. The first thing you tell him is that he started his post incorrectly by making his statement about this site into a broad-brush feminist characterization. as much as we'd like it to be, they're not the same thing.
Maybe he's actually, you know, read these boards long enough to expect such knee jerk reactions. It's not like it doesn't happen. I think his real courage lies in telling us he is a white male who feels this way.
I believe it is this kind of comment that he was afraid of. These boards tend to get fairly heated, both because of the anonymity of the internet and because the topics that are being discussed are controversial ones. It takes a lot of guts to post here for the first time (I would know, this is my first post as well).
It is certainly not fair to say that MJGabay thinks "feminists are barbarians." That implies a) that all Feministing posters are feminists, and b) that Feministing posters represent ALL feminists, and you and I both know that that isn't true. Flame wars are hardly unprecedented on this site, please try to respect the OPs wishes that this not become one.
Okay so first let me just respond to this bit about me thinking feminists are barbarians or some such gibberish.
@Arvilla: I hope you realize that I did not intentionally set out to imply that. Then there is the question of whether I have some more subconscious notion about feminists that caused me to be condescending. Well, I would assert to you that just because I'm scared of being flamed on a site where I have seen people being flamed before does not necessarily imply that I think feminists specifically are "barbarians". I think it simply reflects the fact that I have seen people being flamed on the internet in general and at this site specifically. Nevertheless, your response did NOT offend me because I know that I don't think of feminists that way--even if you did interpret my post as coming off that way. And besides, who says I don't consider MYSELF a feminist?
@LukaStarkiller: Thanks for the support.
You may consider yourself a feminist. I hope so, in fact. But you gave the impression that you felt you had something to fear from Feministing readers. I really just meant you didn't need to act like WE were barbarians. "Feminists" seemed like the best way to describe the us I thought you were referring to.
Another piece of advice, though, is not to be so scared of being flamed. It's just the internet. These topics get emotional because they're about really serious issues. It'll help you a lot in the future if you can just tell yourself going in, "If people get mad at me for this opinion, I won't take it personally. I'll either reassess my opinion, defend myself, or disconnect."
I believe he was talking about this community. In which case, you're his case-in-point.
Oh puh-leeeease. I gave him some advice. That is not flaming, and if he can't handle that, he really need not participate in discussions about really serious topics here.
Advice in the form of implication of ignorance is like any other form of condescension.
You're excusing your own behavior the same way some misogynist might when confronted about "chivalrous" behavior: "I was just trying to be helpful to the little lady, you know because women are lesser beings and so on."
Every time a dissenting voice comes up the first assumption that some people make is that the person just must be uninformed or ignorant, never that they have read the same stuff as you have and come to a different conclusion. Philosophy isn't mathematics, it is possibly to observe the same thing and come to different conclusions about the meaning or values of those events.
Hell, that's even true of math.
In what way did I imply he was ignorant/unimformed. The only thing I implied or said was that he was being condescending by suggesting we would tear him apart for dissent.
Must be why a half dozen other people feel you were intolerant in your response. We're all on the same crazy-pills.
No seriously. What did I imply he was ignorant or uninformed about?
I didn't say crazy pills, but I think you all might be reading my post to be a lot more hostile than it actually was.
When a good number of people take your post to be hostile, you should consider that maybe your post was more hostile than you intended, rather than they all took it as more hostile than it was.
(Of course, what's merited depends on how you imagine the post you responded to, which may also vary.)
Yeah, and your advice was basically to shut the fuck up about the fact that this place is adversarial. That's not really advice, though, I think.
I believe he was talking about this community. In which case, you're his case-in-point.
Please. I gave him some advice. That's not flaming. If he can't handle what I advised him, he need not participate in conversations about such serious topics.
Pot, the kettle called.
you made me LOL. Thank you ^_^
Lolllllllll
Laugh out loud loud loud loud . . .?
I just don't feel that it should be done to the detriment of well-qualified people whose only crime is NOT being able to shift the balance for us.
Affirmative action is not about giving less-qualified persons of color and women "an edge". It's about making sure that equally qualified women/POC are given equal opportunity to promotions and advancement, i.e. not just giving out promotions/hiring when white men are ready for them (which is how I take this case).
I read somewhere that the town's racial makeup was not reflected by the number of POC in the hiring field. When white men are disproportionately overrepresented in a hiring field, then it's time to recruit a little harder and try to look at different venues for talented firefighters.
"I read somewhere that the town's racial makeup was not reflected by the number of POC in the hiring field. When white men are disproportionately overrepresented in a hiring field, then it's time to recruit a little harder and try to look at different venues for talented firefighters."
I agree. I think this back and forth over affirmative action is leading nowhere. The time has come to hard quotas in hiring based on the local demographics.
But if the people in the hiring pool met the qualifications and were told they would be promoted, revoking their promotions is not justified just because there is not a certain number of POC applying for the positions.
But if the people in the hiring pool met the qualifications and were told they would be promoted, revoking their promotions is not justified just because there is not a certain number of POC applying for the positions.
@RMJ - Well, even through that point of view, which makes sense to me, the city HAD vacancies to fill, is my understanding of the situation. It is not as though they were like "quick, we have lots of whites, let's do some promotions!". They had vacancies they NEEDED filled at that time and they tried to fill them at that time for that reason. When they only qualified applicants were whites, they nullified the results. Similar to what @Crumpet said.
So there are these vacancies and qualified people to fill them - but the city was too scared to do so. That doesn't seem right to me.
But that's the thing. The test was obviously flawed because it was biased towards Whites. The test didn't weed out the qualified individuals from the unqualified ones, like a valid test would. It separated the Whites from the minorities. We can't jump to the conclusion that the firefighters who passed the test are qualified for promotions when the test doesn't do that.
My first point probably indicates to you, accurately, that I am NOT in favor of it. I mean, yes, I agree that the under representation of women and minorities in certain fields of work is disconcerting and I would love to see it rectified. I just don't feel that it should be done to the detriment of well-qualified people whose only crime is NOT being able to shift the balance for us.
Here's what you just did. You said that you were not in favor of affirmative action. Then, you defined affirmative action and said you wish it was like that, without recognizing that that's what affirmative action is. Then you say it's putting minorities over qualified Whites, which is isn't. So you do support affirmative action. You just believe the lie that women and people of color only get jobs because of affirmative action and that they stole that job from a more qualified White man.
Hold on a second - you said 'the test was obviously flawed because it was biased towards Whites'. Huh?? How can a test be biased towards ANY race? Isn't it racist to even imply that some races would do better on certain types of questions then others?
Can you give some examples of what types of questions or tests would be biased in favour of a particular race?
If you have good examples I will fully support you... but at face value? Your post seems racist and completely unconvincing. If this case legitimately was decided incorrectly, we need better arguments then this or no one will be convinced.
Honeybee,
Learn to read more. Lots of tests are racially biased. LOTS of them. It's very frequently a topic of discussion for lots of different standardized tests and entrance exams.
In this case, one of the arguments is that this test favored those who had a longer history of knowledge about the fire department, like guys who were second, third, and fourth generation fire fighters. All white men. Whereas the hispanic men were first-generation and at a disadvantage.
Additionally, pricey resources available to the firefighters for studying for the tests, like those they had to purchase online, favor those who are more financially secure, which also, on average, favors white men.
I could go on giving tons of examples of ways tests can be written to favor white test-takers. Examples used could be more relevant to white experiences. The wording of questions could favor those raised in a white culture. Taking the test itself could be expensive, which, on average, favors white people. Need I go on?
It is not racist to suggest certain things may produce racist results.
Exactly. A valid test assesses what the average [blank] should know. But when we live in a White-centered culture, test makers believe the average person to be the average middle class White male. So the average firefighter, in the eyes of test makers, might be the average White male firefighter. And because White people have had more opportunities to enter the workforce, including firefighting, then the test takers might further assume that the average firefighter has several firefighters in their family already. I'm not going to say that everyone should be able to pass written and practical firefighting exams, but if someone goes through the physical training and studies for the written exam, then they should have a better chance at passing than someone who hasn't received such instruction.
Exactly. A valid test assesses what the average [blank] should know. But when we live in a White-centered culture, test makers believe the average person to be the average middle class White male. So the average firefighter, in the eyes of test makers, might be the average White male firefighter. And because White people have had more opportunities to enter the workforce, including firefighting, then the test takers might further assume that the average firefighter has several firefighters in their family already. I'm not going to say that everyone should be able to pass written and practical firefighting exams, but if someone goes through the physical training and studies for the written exam, then they should have a better chance at passing than someone who hasn't received such instruction.
I find it very interesting that you told someone above to "check his tone" and then you go on to tell Honeybee to "learn to read more." While I agree with the points you're making in your post the way in which you started the whole thing came off incredibly rude and insulting. Honeybee asked for examples, you provided them. You don't have to question her ability to read. Personal attacks are not helpful.
I didn't question her ability to read. I questioned her dedication to making herself knowledgeable about the topic.
It gets really old that these threads have to start at Racism 101 sometimes. Really old. Starts to feel like we're talking to a wall.
People come to these websites to learn because they have an interest in the topic, not because they already know everything there is to know about feminism and the issues surrounding it. It may be frustrating, but we should be patient an try to draw people near instead of pushing them away from our viewpoint.
Actually I hadn't really considered alot of this before. It's something I need to think on.
Honeybee, Learn to read more.
***********
I didn't question her ability to read.
Really? Really?
I just don't even know what to say. Are you doing this on purpose?
Yeah, REALLY. Note that I said, learn to read MORE. Which insinuates she does know how to read but should learn to do it more often so she is more aware of these things. It's clearly an argument about frequency. Not about ability.
And note that she herself agreed it's something she'd like to learn more about?
Oh my goodness! Is a simple, "I'm sorry," completely impossible for you?
Obviously you were angry about something yesterday while posting. Maybe you came to the boards angry or something in a couple of people's posts made you angry (something that you interpreted as hostile in their posts that almost no one else seemed to interpret that way). Either way, you decided it would be a good idea to throw a rude, sarcastic and mean-spirited comment Honeybee's way. Like I said, I agreed with the points you were making, just not the way in which you chose to make them. It was uncalled for. You've been called out on it. Apologize and move on.
Yeah, I can apologize for using sarcasm. That's not necessary, and I could've made my points without, so for that I apologize.
I only argued the points because instead of people just calling me out for being sarcastic and/or rude, they tried to pretend I was saying things I wasn't. It annoys me to have my words mischaracterized so I defended them.
But yeah, I'll admit these threads about race put me on edge, because it's always a reminder that on race issues, most of this community is still as willfully ignorant as the general population. It's frustrating, so it puts me in a mood.
Sorry, I don't buy this.
Fire exam test preps are available at all libraries in hard copy as well as soft copy form. New Haven and the surrounding towns have excellent library facilities. In addition if you are going for the lieutenant or captain's exam you can begin studying the day you pass the CPAT or get hired to the job.
The SAT has been reformatted several times because it was found that white takers of the test tended to do much better than the minority takers, regardless of location where the test was administered.
Any good test will have been reformed due to probable racial or gender bias.
Test that include questions regarding cultural capital will be skewed towards the culture that made the test.
Especially 'high' culture, opera, philosophy literature.
As an extreme example from Alaska, one standardize test for school children found that Rural Alaska Natives, when asked where milk comes from, always said "The store" as the best answer and not "A cow," as that reflected their best answer.
There is actually quite a bit of interesting research on this topic that suggests that beyond the content of the test itself (which has already been mentioned by others) the environment in which the test is taken is important.
For example, if a math test is given to a classroom of boys and girls boys will tend to do better, unless the girls are told beforehand that girls have been shown to do better on this test. The beliefs people bring with them when they walk into a test environment are shaped by our culture and surroundings and can be very important factors in test taking.
So... the non-white candidates did badly because they thought they would do badly?
That's not the tests fault.
Especially after all of the effort the city put forward to make the test balanced.
(Disregard if you are speaking about test in general and not this one specific test).
Yeah, tests in general, does not so much apply to this one...
Hold on a second - you said 'the test was obviously flawed because it was biased towards Whites'. Huh?? How can a test be biased towards ANY race? Isn't it racist to even imply that some races would do better on certain types of questions then others?
Can you give some examples of what types of questions or tests would be biased in favour of a particular race?
If you have good examples I will fully support you... but at face value? Your post seems racist and completely unconvincing. If this case legitimately was decided incorrectly, we need better arguments then this or no one will be convinced.
The race bias of the test was not argued. The only bias implied was access to test prep materials. The argument was that more whites had family members who owned the costly materials and that a disproportionate number of POC had to pay to get those materials. It was also admitted into the record that at least some of the whites who passed the test had to face the same financial burden of purchase as did the POC.
If person "A" has an uncle who is a carpenter and person "B" does not then it may be argued that person "A" has superior access to carpentry training that might enable said person to do better on a cabinet-making exam, but that is not an issue of race relating to the exam. It could be an argument, in this case, that historical racial bias has set up a system which is disparate in regards to access to training and test prep materials. However the test itself isn't biased, while the history of employment leading to multiple generations of whites of the same family may be at issue.
I would support an argument making prep materials something freely available to all applicants thus mitigating the likely racially biased matter of access. However this was not the argument made, it should have been.
Bottom line: The people who passed the test passed the test through study of the prep materials.
Take a few seconds to think WHY the White firefighters had generations of their White family members serving in the fire department. It's racial bias.
You are not going to fix the problem by taking away the end results of this any more than kicking all white homeowners out of their homes is going to fix housing discrimination.
I'm not arguing the problem does not exist, nor that it's roots are not in racism. I'm arguing for an actual "fix" to the issue of access by guaranteeing equal access.
This is a case where the fix didn't fix anything.
I've been considering this a bit more and the most reasonable solution may be to have a third party determine an appropriate amount of prep time for the exam, then to allow any party a retest after granting them access to the test prep materials.
It's not a perfect solution, but it seems a viable one.
Racial bias what?
Of the test? I don't think so.
Some groups self-select for different jobs at different rates.
In the military the infantry and combat arms are skewed white... often white infantry men join out of a sense of tradition as their family has been in the military for generations.
The military overall is skewed towards minority groups. Different minority groups join for different reasons.
There does not need to be racism for that result.
Just because people self-select for a job does not mean the promotion test, or the hiring test was biased.
Another question is why do people self select and the answer to that question may very much be rooted in issues related to racism, such as historical discrimination (generations of white people doing something that POC were not allowed to do) and SES
Would you also say that (for example) no one needs to worry about the fact that there aren't enough women who are CEOs of Fortune 500 companies, or should we ask ourselves what led to this?
I am trying to focus on the particulars of the case at hand, as the Supreme Court looked at an individual case.
In my estimation, if the test was as fair as the city could have made it, then the results should not have been thrown out.
If the non-white firefighters had faced racism themselves I am sure that recent EOCC complaints would have made their way into the record. But they have not.
The Supreme Court noted that the City had problems with racism in the 1970's. Which is why the city spent over 100,000 to make a test, and had the conduction of the test handled by outside organization.
Racism does exist... but the point of all of the trials was to get at what really happened, not what hypothetically happened or what happens in Fortune 500 companies.
Its about a Fire Department in the city of New Haven.
Its also about balancing disparate treatment and disparate outcomes.
You brought in some outside examples, as did I, although I agree that we should focus on this case.
I think we do need to look at it in broader terms, beyond the test itself. As was mentioned throughout this thread, you can spend 10,000 making the test valid (as you demonstrated they did) but as long as the access to preparation materials is not equal it is may be racial bias.
I do not think that the results of the test should have been thrown out and I do not disagree with the ruling, I just disagree with your statement about self selection, it truly rubs me the wrong way...
What is it about self-selection, or my comment specifically, that bothered you?
I think self-selection is an important factor we need to rememeber.
And just because one group is over-represented, it does not mean that that racism or sexism, institutional or otherwise, is at play.
Could it? Should we be on guard for it? Of course. But we also should not have knee jerk reactions in any way.
Why do little girls self select kitchen set toys and little boys self select trucks and guns? Just because a person might choose a specific toy/job/insert whatever here doesn't mean that choose isn't routed in a world of social normative and cultural forces. It doesn't mean that it's not racist or sexist, it just means that the racism and sexism we face is deeply routed and constantly internalized.
Thank you for responding Daliah... Oh...
Just because a person might choose a specific toy/job/insert whatever here doesn't mean that choose isn't routed in a world of social normative and cultural forces.
That is a good textbook response.
But it also seems to completely disregard any human capacity for free will as well as fails to acknowledge andynon-social reason a decision could be made.
Just because there are social forces in play does not mean we (or more specifically, I) have to buy into social determinism hook like and sinker.
Of course all the factors need to be considered, but you seem to be disregarding the social, cultural environment that we live in entirely.
Self-selection may occur based on other factors (and these are very interesting to explore), but i doesn't mean that we don't need to consider systemic pressures involved (ones that we could and should change).
I feel like your response is an easy out of taking responsibility over the issues within our society- well women want to be doing all the housework, it's not because they were raised that way, they are just self selecting.
I don't disagree with you that there is often a knee-jerk reaction, but it happens in both directions
I'm with you completely on these factors Daliah. I think my question here, and my discomfort with the case, is whether we want the government to be the site of correction of these things. I mean, do we really want to be these legally protected classes to correct decades of a culture that says these very groups are inferior. Government interventions just perpetually embed our difference into law and never really seem to transform the attitudes themselves...
Is it possible that it wasn't the TEST that was biased, but the society that the firefighters grew up in? Other factors can contribute to who will or will not pass a test, such as the type of education they had access to, the environment they grew up in etc.
If this is the case, then I agree with MJGabay that the way to fix the problem is not to throw out the test, but to work towards fixing greater social ills (such as the education and funding programs he mentioned). This would take longer, yes, but it would also fix the problem at its source and not leave us open to allegations of discrimination.
(eep! sorry about the tripple post above. I really am new at this).
All of the things you mentioned are examples of racial bias. I'm not saying that the test asked pop culture questions about famous people in White history, which have nothing to do with being a firefighter. I'm talking about the test makers making a racially biased test, whether it was intentionally or not. Our culture is a racist environment that disproportionately benefits Whites. This makes our standardized tests open to racial bias.
This I completely agree with.
@BackOfBusEleven
So after your assertion that the test was racially biased, I read the other comments and some more on the wikipedia article. I wasn't able to find too much information, but assuming that the the lack of prep materials was in fact a big factor causing hispanics and blacks to do poorly on the exam, I would then agree that there is a problem. I wonder if canceling all the exams is the best way to rectify it though - why not let those who failed retake the test after allowing sufficient time and access to prep materials? After all, everyone who took the exam spent a lot of time studying and spending money on prep materials in some cases. It seems unfair to THEM to completely invalidate their hard work.
It seems to me that the availability of the prep materials (ie specific evidence that the test discriminated against minorities) was pretty important to this issue, so I'm a bit disapponited this (or some other evidence) did not show up in the main post. :(
With regards to my opinion of affirmative action, maybe I have some misconception but I dont' see what it is from your post. You say I believe the "lie that women and people of color only get jobs because of affirmative action and that they stole that job from a more qualified White man." Perhaps I don't understand things correctly. I agree that if two people were perfectly equally qualified, there is no problem with giving that job to the underrepresented person. Perhaps I just don't understand how affirmative action is actually carried out- my only concern is that less qualified people would be given preferential treatment when things are NOT at least very nearly equal. But perhaps that never ever happens and I misunderstand?
That having been said, I fully agree that the fire department should go actively recruit for well-qualified individuals from underrepresented groups.
I think your solution still wouldn't fly. Would the White firefighters who passed the test be promoted, even though all of the firefighters who took the test weren't on a level playing field to begin with? That wouldn't be fair, because the White firefighters were at a greater advantage before the pencil hit the paper. Would the ones who failed take the test again after getting all of the study materials and be promoted if they passed, over the firefighters who passed the first time? Test takers usually do better the second time around anyway, so they might pass simply because they took the test again. Would the firefighters who failed the test take the exam whenever the department is looking to promote more people? That means the minority firefighters would have to wait a period of time before they have the opportunity to be promoted after they failed a test due to factors outside their control. It's a difficult situation, and I can't think of a fair solution to it.
Basically, affirmative action is implemented to make sure that groups that were discriminated against in employment and education don't continue to get discriminated against. I'll use the President's Supreme Court nomination process as an example. His short list consisted of only women. All women were qualified for the position. Does that mean that no men were qualified? No. It just means that there have only been three women on the Supreme Court ever, so they're a seriously misrepresented group, especially when more than half the country is female. The president set out to change this by nominating a woman. Let's say Judge Sotomayor and Janet Napolitano were his final two choices. Napolitano is White, and Sotomayor is Latina. They're both equally qualified, but there has never been a Latina/o on the Supreme Court, a population that makes up 13% of the country. There's one thing that Sotomayor can do that Napolitano can't do, and that's make the Supreme Court more representative of the ethnic make-up of the country.
Regardless of how we feel as a policy matter, the legal issue here was about Title VII, an anti-discrimination law passed by Congress in the 1970s. That law explicitly includes a ban on disparate impact discrimination -- i.e., policies that are not intended to discriminate but nevertheless have a disproportionate adverse effect on protected groups, unless the policy is "job related for the position in question and and consistent with business necessity", and no reasonable alternative practice that would have less adverse effect on the protected group would serve the same purpose. For example, if a fire department instituted a policy that all firefighters had to be able to bench press 200 pounds to be hired, this would likely result in fewer women getting hired. The fire department would argue that the policy ensured that all firefighters could carry a person out of a burning buiding. If the women could show that there was a better test of one's ability to carry a body out of a burning building than bench pressing that more women could achieve (e.g., being able to carry dummy out of a building), then the bench press test would be illegal discrimination.
So this employer was stuck between a rock and a hard place here -- either certify the test results and potentially be sued for disparate impact, or not certify and then be sued for intentional discrimination (which is what happened here). This was actually a pretty complicated and interesting case, where no one was trying to discriminate - instead, the defendant got in trouble because they were trying to avoid getting sued for discrimination.
As a lawyer, I want to take this opportunity to encourage everyone to actually READ Supreme Court opinions! You can easily find the most recent ones on the Supreme Court's website (under "latest slip opinions"), and most famous older ones can be found just by googling them, if you don't have access to a law library. Not directed at anyone in particular, but I suspect that a lot of feminist our there have never read, for example, Roe v. Wade or Griswold v. Connecticut.
Thanks so much for a great run-down of the legal issues. The news isn't covering anything except this "reverse racism" angle because THAT'S something people will talk about! The discussions on this thread have all been interesting, but I appreciate that you've brought us back to the specifics of the case and explained some of the "legalese" that tends to bog many of us down.
I think you've missed an essential point in Affirmative Action (AA, because I'm probably going to be saying it a lot).
AA's goal isn't to give someone a leg up. It's actually to prevent an employer from looking at two applicants and saying "well, candidate A is white, B is black. We like white people more here. S/he is hired!" which is what had happened a lot when the measure was passed. I'm sure it still happens, but employers have to be damn sure to really cover their tracks. AA, on that end, does also protect white people because an employer can't say "we don't have enough black people here, so B is hired." It does cut both ways.
With this particular case in Connecticut, the city had found that the test was promoting white candidates at a much higher rate than those of minority status. They thought the test was being discriminatory and so took away the test for re-evaluation, thus making the promotion impossible and stripping these men of the ability to be promoted. The law suit is really about how the city handles its promotions through testing.
The SCOTUS found that the test itself was not really racist because there wasn't "enough probable cause".
I think it's a misstep in the way we interpret Title VII because if there is a testing disparity between race, then there is something wrong with the test and the city should re-evaluate.
I mean, yes, I agree that the under representation of women and minorities in certain fields of work is disconcerting and I would love to see it rectified. I just don't feel that it should be done to the detriment of well-qualified people whose only crime is NOT being able to shift the balance for us.
Let's lose the sham that a) qualifications were ever the sole criteria for job applicants and b) employers can objectively assess how qualified a candidate is. Qualifications are not as cut-and-dry as you think.
Affirmative action addresses that reality that a) race has always been a criterion for applicants and b) an applicant's race influences perceptions of their qualifications.
Affirmative action for white people already exists; it just isn't formally legislated. It's informally practiced via racism. Legislating affirmative action for people of colour doesn't give them an edge; it compensates for the preference most employers will already give to white candidates. It's reality-driven: we can't stop employers from favouring certain candidates because of their (white) race, but we can force them to tack some favour onto candidates who aren't white.
Imagine a swimming race in which white swimmers - but not swimmers of colour - have 15 seconds quietly deducted from their end time. Imagine that the swimming race's administrative officials let this unfairness happen because they're predominantly white and hold racial prejudices. Imagine there's no way to stop them. The swimmers of colour wish there were more diversity amongst the officials, but the only way to become an official is by having previous experience as a highly successful swimmer. You can see the dilemma for swimmers of colour; they can never win because the odds are stacked against them, and they can't change the odds because that requires power - and to get that power, you have to have beaten the unbeatable odds. It's a shitty situation to be in. So a rule is instituted: officials are formally required to subtract 15 seconds from the end time of swimmers of colour. This counterbalances the 15 second deduction white swimmers already get, and allows more swimmers of colour to rise up in the ranks until there's enough diversity amongst the judges that no 15 second bonuses are given to either race. You can devote your attention to helping make the black swimmers better athletes through school programs, funding, resources, etc - that's important too - but until you address the glass ceiling of whiteness, you'll never solve the problem.
Yes, some perfectly decent white swimmers are going to get screwed over by this. But so what? Perfectly decent swimmers of colour get screwed over all the time. At least this screwover is mutual and will facilitate less screwovers in the future.
Under-representation doesn't happen just because we don't have enough good candidates of colour. That assumption really sells people of colour short and gives undue credence to white hiring committees. I know many white employers who feel they genuinely want more diversity in their organizations, and bemoan the lack of qualified candidates of colour. But you know what? You can hand them a qualified candidate of colour and many will say, "Oh, this person doesn't really feel like a good fit for our organization" or some BS like that. Why? Because they want someone who feels familiar to them, who seems relatable to them, who matches their mannerisms and interests, who doesn't make them self-conscious or afraid of saying offensive shit, who doesn't seem different. And they are usually unable to see how that translates into whiteness.
Now, you made a good point about education and starting programs earlier. That point feels comfortable to us - there's no ideological queasiness like there is with affirmative action - but it's also born out of some privileged ignorance. There's this tendency among white activists to focus on education, education, education. We have to help the youth, they say. We have to start early. And that's true, we do - but too often, "start early" also means giving up on the current generation. It functions as a cop-out - "oh, it's too late for us to do anything about adults of colour! We missed the deadline!" It's like everyone's waiting for some non-existent opportunity to hit "pause" on the time remote and quickly inoculate the nation's youth against inequity - as if we'd even know how! This ideal world in which we can finally get a great crop of equally-privileged youngsters who will become egalitarian adults and save us from our sins is a myth and fantasy that every generation has had since time immemorial. The children can't save us when legacies are passed down from adults stewing away in a matrix of inequalities. We've already missed the ball on starting early; what we need to do now is start late. We need to hit the ground running, and that requires us to deal with the reality of race in the job market instead of idealistically hoping we can act based on an ideology of colour-blindness that nobody actually espouses.
In other words, in an ideal world, white people wouldn't have to feel like race is a factor in job attainment. But we don't have that world. Welcome to the bed we made for ourselves by forcing that feeling onto people of colour. The discomfort of knowing that our race affects shit is a hundredth of the pain people of colour have endured, and now we're going to have to endure our little slice to make things right in the long-term.
There is no pain-free way out of our racist legacy. At some point we must recognize that we the privileged can't claw our way out of this one without serious sacrifice. The road to equality will hurt. Suck it up.
I just wanted to thank you for this comment. It addressed points I hadn't considered before, and gave me a lot to think about.
Absolutely! Rock on, ghostorchid.
Unfortunately I don't think the response is very strong because it doesn't address this particular case - it just speaks in general terms about the overall problem. I would have liked to see a more pointed response that directly addresses the situation and how/why the decision should have been different based on the laws in the US.
I recognize this is a set back however based on the facts of this specific case I am having troubling articulating any valid reasons for why the decision is not valid other then 'affirmative action', however I don't believe there is such a policy nor am I a big fan of such policies in general.
Perhaps someone else with more knowledge, legal or otherwise, can weigh in with more opinions on the case. I'd love to be able to express good arguments on this one to others.
This is another reason that we need Sotomayor on the court so badly. Can the summer confirmation hearings get here, already?
Unfortunately, she'll be replacing Justice Souter, who was already in the dissent. Her confirmation won't do much shift the ideological balance of the Court.
Unfortunately, she'll be replacing Justice Souter, who was already in the dissent. Her confirmation won't do much to shift the ideological balance of the Court.
"why is racial discrimination only considered an offense when it is women or people of color being biased against whites?"
Denny's, Abercrombie, Apple computers, Morgan Stanley, Wal-Mart, and about a zillion other rightfully sued companies would beg to differ. I'm sure they wish you were right, but you're not and they were not.
Racial discrimination is wrong no matter who the perpetrator is and no matter who the victim is.
Logrus, meet Samhita.
"why is racial discrimination only considered an offense when it is women or people of color being biased against whites?"
Denny's, Abercrombie, Apple computers, Morgan Stanley, Wal-Mart, and about a zillion other rightfully sued companies would beg to differ. I'm sure they wish you were right, but you're not and they were not.
Racial discrimination is wrong no matter who the perpetrator is and no matter who the victim is.
Lyle Dennison at SCOTUSblog has helpful commentary on the significance and impact of the decision:
"For other cases, the Court’s ruling applies to Title VII cases a concept borrowed from race cases under the Constitution — that is, that using a race-based selection criterion will be allowed only if it is shown, by “a strong basis in evidence,” to be clearly necessary to remedy past racial discrimination.
When applied in a case involving a job test that seems to favor whites over minorities, this standard will require the employer to accept the results and implement them unless it can offer “objective” and “strong” evidence that the test was illegal because it was skewed to work against minorities, and unless it can offer “objective” and “strong” evidence that implementing the results will almost certainly bring on a lawsuit by minorities and that is probably would lose that lawsuit."
http://www.scotusblog.com/wp/analysis-ricci-without-the-rhetoric/
I have not read all of the comments yet, so I apologize if I am repeating someone else.
But, it seems to me, that if the concern is that the test itself is racially biased, then why wouldn't they address the issue of the actual test (i.e. getting a new test written or whatever) instead of just tossing out the results?
This past month I volunteered in a summer school program preparing at-risk fourth-graders for the standardized test they need to take in order to move on to 5th grade (unfortunately, when these kids took it during the school year, they did not pass). But anyways, there was this one hispanic kid in the class and I learned early on that even if he failed it a second time, he would still move on to fifth grade. English was his second language, and at home he speaks almost completely in Spanish, so because of the language barrier he's at a clear disadvantage (a point I agree with).
But my problem was...why do they just move him on to 5th grade even if he fails, which is essentially ignoring the problem? Why not try and develop a test for which non-native English speakers WON'T have a such a severe disadvantage, or why not have some kind of special program for preparing non-native speakers?
In that case, and in this one, it seems like people are just tossing out the results because they didn't like them, instead of addressing the issue.
I agree that the test should be re-worked. But if you agree the test is racially biased then you also have to toss out the results, and wait for new ones, based on an unbiased test.
Given that only whites and one hispanic passed the test, the test had a disparate impact on persons of color. It doesn't matter if the test was designed for this to occur, only that it was the net result.
As such, the results were tossed and the City of New Haven started (or was supposed to start) looking at other testing methods. When a test is in question, the only responsible thing to do is to invalidate the test. That's what happened in the Ricci case. The City of New Haven made a good faith effort to comply with Title VII Civil Rights Act of 1964.
Shoe, other foot ... if there were a promotions test wherein only persons of color passed, wouldn't you wonder if there was something wrong with the test? You should, unless you think it's inherent that one ethnic group is just naturally better at say, firefighting.
The problem with your argument is there were 17 white firefighters and only 1 Latino.
I don't think a sample size of "1" is big enough to derive the conclusions you make. If 50 white people and 50 Latino's took the test and the results were still this lopsided, that would be different. But with only 1 I don't think you can draw any conclusions about the test.
Please note: of the 17 who passed all were white with the exception of one, who is Latino.
Sorry, it's ambiguous in the posting. Looks like it was 18 people passed (17 whites and one Hispanic).
Actually, to me, it wouldn't look for only persons of color to pass if only or mostly persons of color took the test.
For example, if you have 40 people taking a test, 30 of which are persons of color, 25 people pass, 24, or even all, of which are persons of color... I'd probably barely blink an eye. It's not directly proportional, but especially with small samples, results rarely are.
If you have 500 people taking a test, 250 of which are persons of color, the other 250 not, 250 people pass, and 210+ are not persons of color, then maybe there's something to look at about the test. Maybe. More likely there's something to be looked at about the general environment(s) the 500 people are from.
There are so many contributing factors - race could be, and I'd venture to say IS, merely a correlation. Certainly one worth looking into, but not necessarily meaning the test itself is a problem.
You should, unless you think it's inherent that one ethnic group is just naturally better at say, firefighting.
This only follows if you think that black experiences, hispanic experiences and white experiences from birth onwards are identical, which is pretty obviously false. With many 2nd, 3rd, 4th generation firefighters among the white candidates, it's certainly possible that they were better equipped due to their experiences, and not any inherent racial quality. (Of course, this isn't uncorrelated with race, since historically fire departments were, no doubt, explicitly racist in their hirings.) If there's a genuine skill difference (not due to inherent potential, but how much's been actualised), Title VII allows you to have a disparate impact. (For instance, the NHL will never get in trouble for employing too many white people, since geographic distribution (i. e. black and hispanic people being more often from the south) means that there's a genuine skill difference, which isn't inherent racial ability, but just that white kids play hockey more often than black kids (averaged across America & Canada). If New Haven could show the problem occurred from a non-relevant discriminate, I would expect that they would. I might be wrong here; maybe they expected to win on their argument).
If there is a genuine skill differential, but you can't prove it, you're probably hosed no matter what you do. Corporate lawyers may well start advising companies to promote at random, since that's the only way one can be sure to avoid a disparate racial impact. (This may be a bit of a joke)
The thing about Title VII is that the disparate impact itself -- the fact a disproportionately low number of minority firefighters passed the test -- raises a presumption that the test is illegal disparate impact discrimination. The employer is then allowed to make its argument that the test was legitimate - that policy is "job related for the position in question and and consistent with business necessity", and no reasonable alternative test that would have less adverse effect on the protected group would serve the same purpose.
Having skimmed the case, it seems that the employer in this case was able to put forth enough evidence to convince the court that the test was substantively OK. Whether we agree with the determination the court made on this factual question or not is another issue.
Not true,
For the 118 firemen who took the exams, the pass rate for black candidates was approximately half that of the corresponding rate for white candidates
The passage rate for the Captain exam was: 16 (64%) of the 25 whites; 3 (38%) of the 8 blacks; 3 (38%) of the 8 Hispanics[6]. The top 9 scorers included 7 whites and 2 Hispanics; given that there were 7 Captain vacancies when the tests were administered, and that the "Rule of Three" in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared that no blacks and at most two Hispanics would be eligible for promotion.
The passage rate for the Lieutenant exam was: 25 (58%) of the 43 whites; 6 (32%) of the 19 blacks; 3 (20%) of the 15 Hispanics. All the top 10 scorers were white; given that there were 8 vacancies, under the "Rule of Three" it appeared that no blacks or Hispanics would be eligible for promotion
I called this months ago. The Supreme Court was going to reverse this case. Why? Because it's a Title VII violation.
The issue here is tossing results of a test because of a disparate outcome when one can't find a mechanism for the outcome, or chooses not to find the mechanism. New Haven tossed the test results because of the racial makeup of the promotion candidates. That alone is wrong.
What New Haven SHOULD have done was investigate the test more than it actually did. The expert they hired on the test itself stated that the actual test was not racially biased. This is a killer for New Haven here.
Had they investigated the test prep issue further they could have found disparate racial access to test prep materials, giving them solid ground to toss the results under Title VII.
They did no such thing. They did not toss the results for the right reason, even though there might have been a reason to toss the results.
This means that the 20 firefighters here were racially discriminated against through incorrect use of Title VII to dismiss a test. The decision here, in my mind, is correct given the information at hand.
I disagree with mizbinkley, though, that when a test is in question the only thing to do is invalidate it. That's simply not the case. You need a thorough investigation that finds the mechanism of discrimination (if a mechanism exists). Otherwise you may toss a test where the best candidates had an odd racial makeup purely out of chance. Without the mechanism discarding a test purely on who does well is racist.
The city of New Haven failed to investigate the test enough to determine if it was racially biased before they tossed the results. They can't go back and look at it now that they're being sued. If they threw out the results at the time purely on racial grounds, and the court has decided that they did, they are in the wrong.
Will this make some Title VII cases harder? Yes. Is that necessarily a bad thing? No. It'll make employers consider the potential bias of tests more carefully, as well as any disparate results that come up. What should happen is employers will be more aware of potentially damaging racial issues that they don't bother to look for now, like unequal access to prep materials. Ultimately that should make employment practices better.
Fair point about "testing the test" before tossing, although I consider the City of New Haven's actions an earnest attempt to comply with Title VII after some screw-ups along the way.
However, I disagree with your point about "the expert they hired on the test itself stated that the actual test was not racially biased" --the test doesn't have to biased in order have a disparate impact.
The court disagrees on the honest attempt issue. I've read the appellate cases and it appears to me that New Haven didn't spend nearly enough time testing the test. They only got opinions from three people on the test, only one of whom actually read the test, and that guy sided with the 20 firefighters that they test was a fine measure of firefighting skills.
The test can have a disparate impact, but the city of New Haven needs a "strong basis of evidence" that:
a. The test is discriminatory
and
b. The test will lead to a lawsuit
This case has shown that good faith alone is not enough any more in order to toss the results. Otherwise they're guilty of violating the Title VII rights of those who passed the test not to be racially discriminated against.
You're right that the test itself need not be biased to have a disparate impact, but if you toss the test under fears that the test is biased you need to show that you had demonstrable evidence of the bias, and New Haven can't show that.
Unfortunately, this will give the GOP ammunition to use against Sotomayor, whose selection will not, in any case, change the balance of the court. She's replacing Souter, after all.
Because it's a 5-4 decision, it's likely that this is not the last word. But what a setback for antidiscrimination cases!
This ruling was precisely what Title VII calls for TO THE LETTER. Suits about racial discrimination in hiring procedures must be based on the procedures themselves, not the outcomes.
The outcome of the test itself cannot say anything about any bias in the test. Apply this standard to any test that any group has ever taken: low grades on a test for a specific group do not mean the test was biased against that group, but that there was some pre-existing barrier to that group performing well. That barrier could be a structural, discriminatory one, or it may not be. That conclusion requires further investigation.
We're not going to have racial equality and acceptance in this country via the methods that New Haven employed in this case. The new standard is appropriate.
I don't really agree with the post, but for different reasons than most. I completely agree that this smacks of people crying "reverse racism" and I wholeheartedly disagree with the ruling.
But, I don't agree with the article that is linked to, and therefore, this post for giving it kudos.
The problem with Alito isn't that he might have been influenced by his own background, including his race/ethnicity. This is the same argument people were trying to make against Sontomayor, who was criticized heavily for saying that her race and her background would influence her as a judge. And most of the people in the feminist blogosphere (including me) cried foul, given that gee, most people are influenced by who they are. So that's not Alito's problem here. The real problem is the failure to understand discrimination, oppression and racism. In this case, the city (surprisingly), administered an exam, realized that it had a racial and/or ethnic bias, and corrected that action (although for racist reasons, fearing those litigation-prone minorities isn't good motives people). The test was racist, oppressive, and discriminatory, not the reversal of the test.
So while I agree that the ruling sucks, I don't agree with the why. On the other hand, I do have to mention that it is a symptom of a racist, sexist society that Sontomayor, a Hispanic woman, got critiqued for saying that her background might influence her, while no one worries about Alito, a white-man, doing that. I don't think either person could ever not be influenced by their background, but I do think the assumption that minorities (in Sontomayor's case, women, people of color) are influenced by their background while people of privilege are not is another oppressive incident.
...while no one worries about Alito, a white-man...
Justice Alito is Italian.... in some peoples eyes that is not white.
Alito on several occasions has gone on about his immigrant heritage and the racism his fore bearers encountered in the United States.
It seems that Alito may follow the same distinction.
Read the case here:http://www.law.cornell.edu/supct/html/07-1428.ZS.html
The test was created by an private organization with experience in creating hiring and promotion test. The test was based 40 percent on a written exam, 60 percent oral exam, as that was the terms dictated by the Firefighters Union.
The test was written at the 10th grade level. A candidate with dyslexia scored 6th out of 77 candidates.
The candidates were told what chapters out of what books they had to know.
The test materials cost $500.
All candidates had three months to study for the test.
There were 30 oral examiners. A candidate faced a panel of three oral examiners, two of the three were minorities.
The written was pre-tested on a sample that was skewed to wards minorities in an attempt to reduce disparate impacts.
After the test, the private company requested and received feedback on their test. They threw one question out and gave everyone credit for the test.
The test is not in question.
The city spent about $100,000 to create a racially blind test... so why did so many minorities fail the test?
The City had done everything in their power to create a fair and balance test... they should have certified the test results.
Those are important points for people to know before judging the results of the test and blaming the test itself.
After administering the test, what responsibility does the city have to investigate racial discrimination?
I suppose that after this ruling, they would have to do just as good a job in doing an investigation to throw out the test as a discriminated minority would have to do when trying to accuse the test of being discriminatory! So that sounds like a good thing to me, right?
In other words, if this ruling had happened before the case (wow, I know, I just blew your mind) the city would have had to actually find the source of iniquity (the test prep materials it seems) before throwing out the test in order to prevent lawsuits from the white people. So that's GOOD right? Had this ruling not been passed, and the same thing were to happen in another city, the city could just throw out the results without ever finding out the PROBLEM. Won't this ruling encourage people to find and correct actual SOURCES of iniquity rather than just doing silly things out of fear of lawsuits?
I hate quoting myself, but I said something of the sort in my post a few hours ago:
"Will this make some Title VII cases harder? Yes. Is that necessarily a bad thing? No. It'll make employers consider the potential bias of tests more carefully, as well as any disparate results that come up. What should happen is employers will be more aware of potentially damaging racial issues that they don't bother to look for now, like unequal access to prep materials. Ultimately that should make employment practices better."
This decision makes Title VII discrimination a bigger issue because the same lawsuits that have been brought to bear in the past will be curtailed by employers who are more aware of different types of employment discrimination.
New Haven deserved to lose this case. They made a decision that turned out to be somewhat right, but their methodology was wholly wrong. It was the metaphorical equivalent of throwing a racist dart at the board and luckily hitting the bullseye. It's not something that should be repeated.
This is not a loss for anti-discrimination laws. It subtly makes employers look for more mechanisms of discrimination than existed in the past, which will not only reduce disparate results, but also benefit job applicants in general by forcing employers to take more holistic views in regard to mechanisms of discrimination.
Those who oppose this decision are being a penny wise and a dollar foolish. This decision is a good thing, both on the micro and macro level. It's justice for the plaintiffs, who were unfairly discriminated against, and on the larger scale makes us look for how others may be discriminated against in ways we might not consider.
P.S. Is there any way to subscribe to the comments? It makes me sad to think I might miss some interesting ideas just because I forgot to check back in to the site. RSS feeds or email updates or anything?
P.S.S. What does the little brackets before the posters name mean? Ex. [0+]
One of the best ways to follow your discussions is to go to your profile page and click on the subscription button "Responses to Comments from ___________."
I think you can substribe to the Feministing main page and community page, but not an individual conversation.
The brackes represent how many times a unique reader clicked the "I Liked this comment" link under the test of your post, next to the reply and report abuse links.
The numbers allow you follow the group-think.
The problem is that one of anything is not enough to prove anything.
Math happens!
Maybe it just happened here?
(See the logic of cancer clusters)
Before the city threw out the test - and got into this massive legal brangle - the logical thing IMO would be to give it again to a group of Firefighters of various races/sexes/whatever who have ALREADY shown the ability to work at whatever level of promotion the test was aimed at.
If - in a group of say 100 already capable , demographically representative, Fire Captains from surrounding area the result once again skewed - then there is clearly something wrong with the test. (Racial or whatever does not matter - the flaw would be that it did not correctly select out Fire Captains.) If, on the other hand, existing Fire Captains all passed, or passed in an even ratio, then this one event was just the oddities of math.
In the first case, trash the test and the results - for no other reason then that they are not accurate.
In the second case, the city could keep using the test, because the next cycle of exams would logically skew differently.
(Or, if the test still gave suspicious results, the problem could be looked for in the training, prep. or situation surrounding the test. That would mean the actually problem could be found and fixed - not just covered up by a bunch of politicians.)
Has anyone ever considered the discriminatory impact the "legacy" system has at private universities. At most private colleges the children of alumnae are given extra points toward admission. In fact it tends to be the largest "bonus" in admission, far outweighing any points given for race/gender/etc.
The ultimate impact of this is that discrimination becomes self-perpetuating, so that poorer, minority, or female students are less likely to get in. The hell of it is that its all legal.
I understand how this would obviously adversely effect poor or minority applicants, but how would it have an impact on female applicants?
Yeah I don't get the logic there either. People who went to elite schools can have both sons and daughters.
These schools behave as private clubs when it comes to admissions yet pay no social price for their discrimination. Instead they are afforded lavish praise and respect for their "integrity" and academic excellence.
I'd have to see the test and how well it relates to the actual job of firefighting and the administrative duties of the position being tested for.
But racial tensions were strong there with one f the squads being called the Monkey Island because it consists of mostly black firefighters its not hard to know WHY this is controversial.
I also have to question how anybody knew what anoyone else scored on the test.
Justice Alito also wrote a concurrence in which he addressed that the point of civil service exams are a reaction to the corruption in hiring where friends and family had an advantage over other applicants and employees. The union required hiring and promotions be based 60% on objective criteria, such as this test, to reduce corruption and favoritism.
I have worked in education and testing, and can tell you objective tests are fair. The racial aspect comes from the fact that on average, minorities consistently score about 2/3 to 1 standard deviation below the white mean while Asians score about 1/3 standard deviation above the white mean. However this is true on any test, whether it is a state achievement test, SAT, GRE etc.
I can offer a statistical analysis of the situation. If you took college level math, you should be able to follow the discussion.
http://www.lagriffedulion.f2s.com/testing.htm
Below was a comment from the NYTImes article. It addressed the test construction process. It helped me understand the decision a bit better. I have to say I agreed with the court here. If it were a team of women who were up for promotion and the tests were thrown out because not enough men qualified I'd cry foul too.
DianaLI, NYJune 29th, 20091:36 pm "From reading the opinion, one may conclude that the test was fair. The material was taken directly from the source material (including noting when in the text the question was taken from). Additionally, the majority of the assessment panel was minority (66%). The job analysis questionnaires (which largely helped to determine the type of exam questions) were largely taken from minority officers who were part of the New Haven Fire Department. The test was written at a 10th grade reading level and the qualifications for the positions included the need for a high school diploma. The test was 60 percent written, and 40 percent oral, as per the collective bargaining agreement with the union. The majority of candidates were white, so a largely white make up of the results were not out of the ordinary.
The CSB listened to 3 experts. Two of these "experts" didn't even read the exam, and one of these two even offered his company’s services in devising a new exam for the board. The only expert who actually read the exam was a fire expert and former fire chief who was black. He said that the test was fair and was taken straight from the material.
From these facts, the exam was prepared in a way as to eliminate as much racial disparity as possible. The department wasn't even allowed to see the final exam before the test to prevent cheating. I don't see how this test could be any fairer. I believe the Court ruled the correct and logical way"
Is it not possible that the people who passed studied and those who failed didn't? That seems to be an explanation no one has even considered yet even though it is the most obvious to me.
Also, if the issue comes down to affordable study materials, that is an economic issue not a racial issue.
BTW, if you want to talk about unfair admissions processes, look at the MCAT and medical school. There is an absolutely CRAZY amount of effort required just to apply to medical school. People spend thousands just to take the exam and apply. Besides those costs, the test is so crazy hard that you basically HAVE to take a MCAT class or at least get study books in order to pass. All in all, in order to apply and get accepted into medical school, you need a serious amount of money and anyone without it has almost no chance.
Sometimes I wonder if all these standardized tests for college, grad school, professional school are a subtle way of maintaining some kind of aristocracy.
I read somewhere that several people of color actually passed the test but because of tenure were not up yet for promotion.* In other words as the spots open if they've the minimum years on the job then they would be promotion eligible. Since all this happened 6 years ago you can imagine that a lot of FFs are owed damages then from lost earnings at the higher captain and lietenant's pay rates. (* I think it was in the New Haven registrar as a response from the Attorney Ms. Torre)
For the 118 firemen who took the exams, the pass rate for black candidates was approximately half that of the corresponding rate for white candidates
The passage rate for the Captain exam was: 16 (64%) of the 25 whites; 3 (38%) of the 8 blacks; 3 (38%) of the 8 Hispanics[6]. The top 9 scorers included 7 whites and 2 Hispanics; given that there were 7 Captain vacancies when the tests were administered, and that the "Rule of Three" in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared that no blacks and at most two Hispanics would be eligible for promotion.
The passage rate for the Lieutenant exam was: 25 (58%) of the 43 whites; 6 (32%) of the 19 blacks; 3 (20%) of the 15 Hispanics. All the top 10 scorers were white; given that there were 8 vacancies, under the "Rule of Three" it appeared that no blacks or Hispanics would be eligible for promotion
Should the SAT's be thrown out every year that Asian American students do disproportionately well>