Racism loses at Supreme Court

So Rod, can we assume from your post that judicial activism doesn't bother you as long as the ruling comes out in favor of justice? This was clearly a bad law. If it's a good thing for justices to overturn bad laws, let's stop complaining of activism and "legislating from the bench" and start being thankful that our tripartite system of government puts judges in place to end unfair laws.

As an African-American, I don't see this as discrimination against whites. There should be more of an investigation into why all of the high scorers where white. That would probably shed more light on where the real discrimination is.

-Nikki-

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If I understand correctly, the test was written for New Haven. It wasn't a test with experience in it from other cities. Could it have been written to make sure whites, er, those who grew up in the majority culture passed? Would the Court have accepted a case where the test made sure that you were supporting the local political machine? I don't have any idea. The majority in this decision didn't seem to care very much.

I cannot think of any particularly good reason to have a test for these promotions, though. How can a test be better than experience on the job and demonstrated capabilities during firefighting?

willybobo, remember that Scalia et al. aren't judicial activists because they say they aren't. Don't say otherwise or Justice Scalia will have a temper tantrum. It's only nasty old liberals who insist on overturning laws. Tony and the boys are only protecting the original intent. Just ask them.

As an African-American, I don't see this as discrimination against whites. There should be more of an investigation into why all of the high scorers where white.

Let me ask you this, then. Suppose all the high scorers had been black, and management said No No we need some white firefighters and so went further down the list to find them. What would you say then?

I don't know whether we need written "tests" for firefighters or not. I don't know anything about it. But it's fraud to mount a written list for promotions and then ignore the results. If we're just supposed to pick firefighters by the color of their skin, we don't need to go to all the trouble to give tests. Just line the guys up and pick so many black guys, so many white guys, end of story.

Mr. Ricci, deceived by what was apparently a charade, went to a good deal of trouble and expense to do well on the test. New Haven should be required, and has been required, thank God, to honor the results of its own process.

It really is a terrible thing to know that no matter how well you perform, how good you are at your job, you won't be promoted or (even worse) will get fired for some absolutely irrelevant factor like race.

Observer, It isn't just a test for firefighters. It was for a leadership position and therefore an lot more complex set of skills and knowledge was required. Probably a lot of knowledge of laws and regulations too. My understanding is that the test was written to try to avoid racial issues.

Your Name said: "As long as the poor are disproportionately not-white, we aren't being race-blind."
Granted that some people fall into poverty because of bad luck, anyone who has their eyes open to observe the way the world works (not just in the US either) will see that there are certain characteristics of people who REMAIN poor. They fail to complete their education, they fail to form families, they fail to become reliable employees, they spend their money on luxuries and fail to save. None of these failures are caused by race, but they may be encouraged by a culture which undervalues delayed gratification.

I know a lot of people who came here as refugees, with no English, lack of education, none of the skills necessary in a modern industrial society, who took advantage of the free education and amazing opportunities available in this country and are now prosperous and far from poor, while their children they brought with them now have advanced degrees and are firmly ensconced in the middle class. They are of a minority race too.

Observer, It isn't just a test for firefighters. It was for a leadership position and therefore an lot more complex set of skills and knowledge was required. Probably a lot of knowledge of laws and regulations too. My understanding is that the test was written to try to avoid racial issues

Knowing nothing about it myself, that seems a reasonable assumption.

At some point we have to stop giving you a break because of your race. I would think that when you apply for a leadership position as a firefighter is, if anything, way too late to start applying reasonable, race-blind criteria. Lives are at stake.

When I went to law school, back when the dinosaurs roamed the earth, there were favored minority admission policies which brought a certain number of minority people into the class.

Most of them flunked out.

The bar exam is racially (and in all other discriminatory ways) blind. As it should be.

Here's the problem with the entire case:

If Rod Dreher and I lived in the same small town in Illinois, and we had to write a test for firefighters for that small town in Illinois, we'd come up with radically different tests, given our disparate backgrounds:

Rod is an orthodox Catholic from Louisiana, New York, and Texas.

I'm an athiest from Los Angeles, San Francisco, and Seattle.

Unless it was a purely objective test, (i.e., math, biology or science), OF COURSE, we would have different values assigned to the test, and therefore, our tests would have very results based on race, class and/or socioeconomic status.

I'd bet that people with similar backgrounds to Rod would do better on his test then mine.

That's the problem with this entire case. Make the test purely objective and there can be no issue regarding race. But as soon as there are subjective questions, it opens the door to such problems.

It's why I do not take gymnastics, diving, or any sport with "Judging" seriously. Since all the judging is arbirtrary, who is to say who really "won". Compare that to a race, where there is no doubt who wins and loses.

This test was the equivalent of the Olympic Trials - too subjective. Who really knows who did well? The winners and losers are subject to the whims of the judges, not an unbiased, objective, finder of facts.

Can someone think of a subjective question on a firemens' test?

"Unless it was a purely objective test, (i.e., math, biology or science), OF COURSE, we would have different values assigned to the test, and therefore, our tests would have very results based on race, class and/or socioeconomic status."

Contested questions on the test have included scientific and mathematical questions about, e.g., the weight of a length of hose filled with water, or something of the sort.

The criticism has apparently been mounted in at least some quarters that this kind of armchair mathematical question doesn't really come into play in real-world firefighting -- which may or may not be true, but it isn't a "racist" question.

One might try to make the case that larger social inequities lead to whites performing better on tests of scientific and mathematical knowledge. That is a complicated question, and one that would require grappling with other cultural and sociological factors, including family structures and social attitudes toward education.

But I don't think the firefighter who quit his second job and killed himself to study for this test did well because the test favored individuals of his race. He did well because the test favored individuals who put in more effort than others of similar aptitude.

Your Name 2:04, the city of New Haven paid a company a LOT of money to design a culture- and race-neutral test, to make sure it did not favor whites as such.

Jerry S., the test questions I saw were objective, like how many hoses of lengths x and y do you have to put together to reach z feet from a hydrant.

There was also a personal interview that counted for a very sizeable fraction of the score, with interview teams being mixed black and white. Steve Sailer has all candidates' scores by race in one of his articles.

Lisa -

You state: There was also a personal interview that counted for a very sizeable fraction of the score, with interview teams being mixed black and white. Steve Sailer has all candidates' scores by race in one of his articles.

The statement above highlights my point perfectly. Any judging on a "personal interview" is going to be subjective. And if the "personal interview" is a sizable fraction of the final score, then it makes the test not completely objective. If there is a human doing the judging of "Personal Interviews", it tosses out all objectivity and calls into question the final scores of all candidates.

Can someone think of a subjective question on a firemens' test?

QUESTION: Bernie Madoff and Dick Cheney are trapped inside a burning building, and you only have enough time to rescue one. Do you

A) Go to the nearest bar to have a drink

B) Go home to watch the Red Sox game?

C) Go fishing?

"I don't think the decision matters that much, but it is certainly an example of Scalia as activist."

So any time a higher judge disagrees with a lower judge, that's "activism"?

I had a conversation with an ultra liberal work friend this afternoon about this decision and he concluded that there was obviously something suspect about a test where no blacks were among the top scorers, so obviously the city was right to throw out the results. When I suggested that minority groups on average tend to score lower on standardized tests, maybe due to factors like prejudice, lower quality schools, social problems or families that don't value academic achievement as highly, or that perhaps New Haven wasn't attracting top quality applicants because it doesn't pay enough, my friend accused me of believing that blacks are genetically inferior. He concluded by comparing me to a right wing loon he knows who also believes that the Supreme Court made the correct decision in this instance, despite the fact he knows I voted for Obama. I don't know that rational disagreement is possible on the topic of race. This looked like a slam dunk to me because the original decision is so obviously inequitable and unfair. If they want blacks to be officers, maybe they need to use different criteria like job performance and character references about each person's leadership in the field. Or maybe they need to do a better job of recruiting entry level firefighters, maybe by looking at SAT scores and record of community service in the people they hire.

So any time a higher judge disagrees with a lower judge, that's "activism"?

Any time a court overturns a law or a policy decision of a government it is being activist. I have no problem with activist appellate judges. It's their job. When an appellate court, particularly the Supreme Court gets a case, it is almost always finding a way to balance two competing interests. It is bound to be activist. It is that allegation that there is a way not to be activist as an appellate judge that is dishonest.

Steve -

Badly written laws are always a victory for lawyers.

Andrea noted: If they want blacks to be officers, maybe they need to use different criteria like job performance and character references about each person's leadership in the field.

Indeed. I cannot understand how a standardized test ever helps in this. Of course they went to a standardized test because they had lost a number of suits related to discrimination in their prior systems of promotion.

Loudon, the city didn't deny those who passed the test a promotion because they were white or hispanic. They denied everyone promotions because their test appeared to have been biased. It may be that the test was not biased, but until today, there was no rational argument they could make to say that they had a fair test or that they could meet the standards of Title VII.

The city paid someone to develop a custom test. It turned out to have results that were not consistent with the city's expectations. They threw out the test. They did what they had to do. They would have been sued had they allowed the test to stand because, despite the opinion of today, required them to have a color-blind test and they realistically assumed that, absent evidence elsewhere to the contrary, a test that fails every black candidate is assumed not to be color-blind.

Given the way the opinion was written, this case isn't likely to matter that much. I would have preferred that they send the case back for a review of whether the test was fair or not, something that was assumed by the majority when the city which had developed the test was unable or unwilling to assert that it was.

If you want to make a prediction about Scalia, the first question is whether there is a state or locality in the case. He doesn't seem to like what they do.

The folks who complain about activist judges aren't necessarily conservative, but they certainly have their own view about how the Constitution needs to be interpreted and they call anyone who disagrees with them an activist. They tend to have very simplistic views and ignore the bits of law that show that their views are wrong or far outside the mainstream of jurisprudence.

freelunch: "but until today, there was no rational argument they could make to say that they had a fair test"

Sure there was. That blacks, on average, are less intelligent than whites and hispanics.

Jerry S., as I recall the black firefighters did relatively better on the subjective interview portion than they did on the written objective portion, so the subjective part helped rather than hurt them.

My daughter just hauled up her SATs by 250 points by practice and learning the essay strategy. It pays off. Let those who didn't do so well work hard and try again. Let New Haven or a black community group offer study sessions open to all.

meh @ 9:54 PM writes:

“freelunch: "but until today, there was no rational argument they could make to say that they had a fair test"
Sure there was. That blacks, on average, are less intelligent than whites and hispanics.”

I seem to recall reading about a rather obscure Federal law banning certain employers from using IQ scores in hiring decisions. There were “civil rights” reasons for that ban, if my memory serves.
Your servant,

Lord Karth

Actually, I have a simple answer to all the questions:

You have experts in a field decide who is best qualified to be promoted.

Period. The end. Anyone not a firefighter should take a long, hard look in the mirror and decide if their opinions about qualification tests for firefighter commanders has any relevance. Be sure to consider the people who will die if you decide that an arbitrary criterion like race is more important than the considered judgment of experts.

And, in the legal realm, unless you can prove that the people deciding who to promote were discriminating against minorities in the process of making their decisions, you do not have a leg to stand on in a court of law.

Affirmative action was created to address objectively measured prejudgment in hiring decisions, where minorities were denied the chance to apply for jobs, let alone take qualifying tests. The New Haven situation has no bearing on affirmative action.

The simplest description of this situation is a badly written law and cowards in decision-making positions in the city of New Haven. The rest is blown smoke.

Dreher's rhetorical hypocrisy aside ("I can call you racist and a Nazi, but it's downright uncivil to call me a bigot"), supporters of affirmative action are as much racists as our soldiers in Iraq are murderers. After all, killing is killing, isn't it?

When I hear the simplistic anti-affirmative action screeds from the Right (I think Roberts said something like, "The way to stop racial discrimination is to stop discriminating by race"), I think of people on the Left who say, "You can't make peace by waging war." Well, sometimes you can.

The simplistic anti-affirmative action posts are also dead ringers for Stephen Colbert's "I don't see race" shtick. You see, if we pretend racism doesn't exist, it doesn't exist.

Franklin Evans: Turmarion, a flaw in your logic.

What if the most rigorously neutral, color-blind, ethnicity-blind, objective criteria for school slots or hiring still produce egregiously disparate results?

So what if they do? You are making a sweepingly general statement without any regard to the skill sets necessary for any given type or class of jobs.

I think you're missing my point. The "so what if they do" attitude is the problem. As John Derbyshire pointed out in an NRO article a long time ago (I'll look it up and post the link later), Americans believe in meritocracy (those who qualify should get the job based on "skill sets necessary for any given type or class of jobs"), but they also believe in fairness (anybody should get a fair shot). The problem is that these goals are contradictory, especially when we deal with groups of people.

For example: no 400-lb couch potato would think it unjust that he didn't qualify to be an NBA player, so that wouldn't bother him; I don't have the level of intelligence to be head of the Institute for Advanced Studies at Princeton, so that doesn't bother me, either.

People also aren't too emotionally involved in physical aptitude--no one outside the fringe is bothered by the overrepresentation of blacks in athletics, for example.

However, intelligence is a differnt matter, when we deal with groups of people. It touches on our humanity in ways that tend to strike nerves. Most people would rather be thought of as sedentary slobs physically than to be thought of as stupid, or dumb, or less intelligent (to put it more nicely). No one would want it thought that his group (blacks, hillbillies, northwest Floridians, whoever) was intellectually inferior.

What I'm saying is this: if a group of people (blacks, Hispanics, whoever) seemed in the aggregate to be less qualified for intelligence-based jobs, or highly skilled physical jobs, the impression that would follow from that (and which the likes of Steve Sailer and others tend to promote) is that they just aren't smart enough to do that kind of work, and thus must be content to be relegated to menial work to a disproportionate degree. How would we, as a society, deal with that? That's my point.

Of course, it may be, as Andrea says, that it's an issue with the socio-cultural stigma attached to whomever "untouchables" in India, etc. In that case, the issue becomes one of how to raise the underclass without being unfair to the rest of society. My point was that those who decry the unfairness of affirmative action seem never to be too concerned about finding some other mechanism to help out groups that are still disproportionately the economic losers in our society. Or to put it another way, if we want a strict meritocracy, we either need to quit pretending that it won't produce losers whose problems we can just sweep under the rug, or find some way to temper it to produce greater equity, even if that isn't strictly "fair".

If anyone still doesn't get it, let's do a thought experiment: Suppose that instead of 2%, Asians (who score higher on IQ tests than whites with some consistency) were, say, 50% of the population. Suppose, those of you who are white and anti-affirmative action, that you went on interview after interview, and kept getting turned down. You see all the white-collar, professional jobs, the high-paying jobs, the prestigious jobs, going to Asians. Yeah, there are some whites here and there, but you see a lot more of them as cooks, janitors, construction workers, etc. You complain, but you get told, "Hey, I can't help it if Lee scored higher than you. It's not about race, it's about job requirements. That's just how it goes. We want to hire the best people."

I really wonder if those who inveigh against New Haven and uphold the god of meritocracy would be so sanguine in such a circumstance.

Sorry about the dup post. Yes, Captcha sucks. Here's the actual reply:

Turmarion, before we go on: I am likely to be the most emphatic proponent of affirmative action you are likely to meet outside of the lobbying and activism realm. I was, for 14 years, an expert in employment regulations (focused on pension plans, but I had to know much more to do my job). I know these things from the inside.

Not that I can claim to be an expert any more, and I do regret if that looks patronizing, but here's the real deal: AA was established to stop the routine practice of nepotism and arbitrary favoritism based on race, ethnicity and gender. In practice, it has been sabotaged from both sides, both maliciously and inadvertently.

So, in a case like the NH firefighters, there are questions that must be asked (in no particular order and not intended to be complete): how much counseling (mentoring) did the minorities receive in their current positions and towards advancement? Is there a prima facie determination that the test was biased? Is there evidence that those deciding on the promotions were biased?

Meritocracy and fairness are contradictions. One is an objective measurement, the other consists of arbitrariness and subjectivity. AA was created (by executive order, not by legislation) to give everyone recourse when arbitrary and subjective judgments were used in hiring practices. It was not intended (though it is used) to govern every microscopic hiring and promotion decision. The last time I looked at EEOC claims stats (I think it was 2002), the mean was around 65% of all claims were found to be without merit. It had been flat for a while up to that point.

Your thought experiment fails to address context. If we raise our children to expect to earn their accomplishments, to do their best and applaud when someone else's best is better, then self-esteem becomes a trivial consideration in this.

Square peg, round hole. When lives are on the line -- and firefighters will tell you as much -- I'd rather have a white, dyslexic all-out committed captain who worked his ass off to be qualified directing the work than a nice, black guy of average accomplishment who means well but couldn't do the math as well or as quickly. If the black guy sees that as a blow to his self-esteem, or a racist attitude, then that is his problem, not mine.

Back in the day, I read weekly and monthly reports showing routine discrimination in favor of white males over women and minorities who were as qualified as the white males. That is what AA is about, not that we have a black fire captain in New Haven.

BTW: SCOTUS ruled properly, I have no doubt of it. The CT law is a fiasco as written, and the NH bureaucrats cowards. Do the right thing, and if someone wants to bring a bad lawsuit against you, this AA proponent will be right there with all the right catch phrases to shoot down the people bringing the suit. AA is not about sympathy jobs, and I don't personally know one black person who wants one.

Franklin, in general I'd agree with your post. The issues I'd point out are as follows:

If we raise our children to expect to earn their accomplishments, to do their best and applaud when someone else's best is better, then self-esteem becomes a trivial consideration in this.

If we raised our kids that way, your point is valid, but I don't see this as being common in contemporary America. We encourage kids to "succeed", to go for the bucks, etc., but there is less emphasis on earning anything. There is way too much "shoot for the stars", "you can do anything if you put your mind to it", "you can be anything you want to be", "live your dreams", etc. out there. And to "applaud when someone else's best is better"--laudable, but rare!

I agree that I'd want the competent firefighter to save me, regardless of race--same for doctor, lawyer, whatever.

AA is not about sympathy jobs, and I don't personally know one black person who wants one.

Also agreed. My point is that affirmative action seems, after forty years, to have been unable to erase aggregate disparities between groups. This means one of two things: 1. AA hasn't been done properly yet, or extensively enough, or 2. There are ineradicable differences between groups that can never be erased no matter what.

You seem to be saying that if it's 1, we'll get it right eventually, and that if it's 2, then this should not make people upset if they have the right attitude. If 1 is indeed the case, then I agree. If it's 2, however, I think you're maybe too sanguine (or idealistic!) about human nature. I can't think of any cases in a complex society in which a group that is disproportionately relegated to the underclass (for whatever reason) is OK with it.

Of course, part of the problem gets back to some of the posts here on college. Our culture currently despises trades and blue-collar work. Thus, to get a job in a factory or some such is seen as demeaning and not "being all you can be". If our culture had the right attitude in this area, it might be less of a problem if some racial or ethnic groups were disproportionately blue-collar or trade workers. Even if this were so, though, I wonder if it's not corrosive to a society to have such a situation. I wonder if the fact that group X is largely composed of, say, janitors, doesn't slide over into viewing them as fit to be nothing but janitors.

Anyway, I repeat that I tend to agree with your analysis--I am just skeptical that human nature in general or current American ideology in particular is well-suited to dealing with different outcomes between different groups in a constructive and rational manner.