Reversing “Reverse” Racism or Something.

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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118 Comments

  1. MJGabay
    Posted June 30, 2009 at 2:46 pm | Permalink

    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!

  2. Honeybee
    Posted June 30, 2009 at 2:49 pm | Permalink

    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.

  3. Arvilla
    Posted June 30, 2009 at 2:58 pm | Permalink

    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.

  4. Posted June 30, 2009 at 3:08 pm | Permalink

    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.

  5. BackOfBusEleven
    Posted June 30, 2009 at 3:11 pm | Permalink

    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.

  6. Posted June 30, 2009 at 3:14 pm | Permalink

    This is another reason that we need Sotomayor on the court so badly. Can the summer confirmation hearings get here, already?

  7. Logrus
    Posted June 30, 2009 at 3:16 pm | Permalink

    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.

  8. sarahkbrown
    Posted June 30, 2009 at 3:18 pm | Permalink

    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.

  9. Honeybee
    Posted June 30, 2009 at 3:18 pm | Permalink

    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.

  10. sarahkbrown
    Posted June 30, 2009 at 3:19 pm | Permalink

    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.

  11. Logrus
    Posted June 30, 2009 at 3:22 pm | Permalink

    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.

  12. LukaStarkiller
    Posted June 30, 2009 at 3:23 pm | Permalink

    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.

  13. stellarose
    Posted June 30, 2009 at 3:23 pm | Permalink

    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.

  14. Honeybee
    Posted June 30, 2009 at 3:24 pm | Permalink

    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.

  15. Arvilla
    Posted June 30, 2009 at 3:25 pm | Permalink

    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.

  16. LukaStarkiller
    Posted June 30, 2009 at 3:26 pm | Permalink

    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.

  17. LukaStarkiller
    Posted June 30, 2009 at 3:28 pm | Permalink

    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.

  18. sarahkbrown
    Posted June 30, 2009 at 3:33 pm | Permalink

    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/

  19. Logrus
    Posted June 30, 2009 at 3:36 pm | Permalink

    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.

  20. Arvilla
    Posted June 30, 2009 at 3:39 pm | Permalink

    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.

  21. LukaStarkiller
    Posted June 30, 2009 at 3:41 pm | Permalink

    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).

  22. Ruby
    Posted June 30, 2009 at 3:41 pm | Permalink

    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.

  23. mizbinkley
    Posted June 30, 2009 at 3:48 pm | Permalink

    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.

  24. Zyfron
    Posted June 30, 2009 at 4:01 pm | Permalink

    “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.

  25. Zyfron
    Posted June 30, 2009 at 4:03 pm | Permalink

    “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.

  26. Honeybee
    Posted June 30, 2009 at 4:07 pm | Permalink

    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.

  27. BackOfBusEleven
    Posted June 30, 2009 at 4:10 pm | Permalink

    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.

  28. Alethea
    Posted June 30, 2009 at 4:10 pm | Permalink

    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.

  29. mizbinkley
    Posted June 30, 2009 at 4:12 pm | Permalink

    Please note: of the 17 who passed all were white with the exception of one, who is Latino.

  30. Arvilla
    Posted June 30, 2009 at 4:14 pm | Permalink

    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.

  31. davenj
    Posted June 30, 2009 at 4:16 pm | Permalink

    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.

  32. Brian
    Posted June 30, 2009 at 4:16 pm | Permalink

    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)

  33. BodyPart
    Posted June 30, 2009 at 4:18 pm | Permalink

    “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.

  34. BackOfBusEleven
    Posted June 30, 2009 at 4:19 pm | Permalink

    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.

  35. Logrus
    Posted June 30, 2009 at 4:19 pm | Permalink

    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.

  36. BackOfBusEleven
    Posted June 30, 2009 at 4:21 pm | Permalink

    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.

  37. mizbinkley
    Posted June 30, 2009 at 4:21 pm | Permalink

    Sorry, it’s ambiguous in the posting. Looks like it was 18 people passed (17 whites and one Hispanic).

  38. llevinso
    Posted June 30, 2009 at 4:29 pm | Permalink

    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.

  39. Van Byrd
    Posted June 30, 2009 at 4:36 pm | Permalink

    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!

  40. mizbinkley
    Posted June 30, 2009 at 4:39 pm | Permalink

    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.

  41. BackOfBusEleven
    Posted June 30, 2009 at 4:40 pm | Permalink

    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.

  42. Crumpet
    Posted June 30, 2009 at 4:41 pm | Permalink

    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.

  43. MJGabay
    Posted June 30, 2009 at 4:45 pm | Permalink

    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.

  44. Crumpet
    Posted June 30, 2009 at 4:45 pm | Permalink

    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.

  45. Gular
    Posted June 30, 2009 at 4:49 pm | Permalink

    I believe he was talking about this community. In which case, you’re his case-in-point.

  46. davenj
    Posted June 30, 2009 at 4:51 pm | Permalink

    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.

  47. Gular
    Posted June 30, 2009 at 4:51 pm | Permalink

    I believe he was talking about this community. In which case, you’re his case-in-point.

  48. Arvilla
    Posted June 30, 2009 at 4:52 pm | Permalink

    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.

  49. j-doug
    Posted June 30, 2009 at 4:53 pm | Permalink

    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.

  50. Arvilla
    Posted June 30, 2009 at 4:55 pm | Permalink

    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.

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