To me, this is the heart of the issue. The city threw out the test not because they thought it was biased, but because they were afraid to get sued. That's not only their practical justification, but their legal justification. That's weak. For me, the case doesn't have any kind of moral heft unless you establish whether the test is actually biased or not. The state didn't even bother to try to find out. They just screamed OH NOES and invalidated the results. In what way is that useful to anyone? I believe the SCOTUS issued new rules today about when it's approproate to take action because of a fear of lawsuits and when it's not. Perhaps that will be useful.
I know the case is tied in to much larger issues, but the more I read about it, the narrow and esoteric the thing seems. I can't get worked up about it one way or the other because all the decisions have been so narrow and the deep moral/philosophical questions seem quite far from what folks are mulling over on the bench. That said, Ginsburg's dissent is a tour-du-force. Taking it as a policy statement, I could not agree more.
She should get her of fucking blog, and stop outshining me in the comment section. Seriously, though "the moral heft" point mirrors a lot of my own thinking.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
Yeah, that's basically where I fall, too.
That sounds good, but I think it understates the predicament the city was in. It wasn't just that they were going to get sued, which sounds pretty frivolous, it was that they were going to lose.
There was obvious disparate impact. And the city was going to have a real hard time proving relevance. And legally, that's it, game over. The issue I think everyone is struggling with is the difference between a test that is unfair and a test that is (going to be) legally proved to be unfair; they don't appear to be the same thing.
It's very unjust to paint the city as frivolously throwing out the test. They didn't make much of an effort to show whether the test was inherently biased or not because legally that really wasn't relevant. What this case is really about is what is the appropriate standard for proving discrimination in bias cases. That's a huge issue.
What WoofWoof said. I'm a math guy. Statistics count. They matter. Disparate impact is definitely meaningful. This got gutted for sex discrimination for private employers during the Reagan years, it was a bad thing. Virtually no hiring practice suits have been prosecuted since.
I don't blame you for backing away from this one; who wants to be in favor of the guys that flunked the test?
However, unless and until the city can show how that test was directly relevant to the promotion its tied to, they are using it filter people, and not in a good way. Let me tell you a story I heard recently.
A new police chief in Honolulu in the 20's wanted to clean up the force, he banned playing of ukeleles (I'm not kidding) at night at the station, and established a height requirement. He then sent officers that he felt were otherwise qualified but too short to a physical therapist, who had a routine to make the taller for long enough to be hired. Can you see how that's going to work out? Do you think everyone who came through the door got sent to PT?
Who knows what's going on with this test. I don't think I should have to know. I see that there's disparate impact. I get immediately suspcicious when somebody tells me how hard they work to pass a test.
In the end, discrimination is a form of blindness. It hurts the discriminator by closing them off from some of the talent available. Sometimes the best talent. We can't afford that.
I'm not backing away because they flunked. I just don't like the idea of throwing out a test because we don't like they look of the people who passed. I am not insensitive on the issue. I think Adam raises a number of serious points, above. Moreover, fire depts, nationally, have been havens of racism and good old boyism. I'm all in for efforts to remedy those issues. But not this one.
And again, as a black dude, who wants to see black people represent, it's very hard to argue in favor of this one. You don't always get to play on your home-field. The refs will, at times, blow a call. But, at some point, we have to compete. This will sound naive, but that's an old value from that black pioneer generation that's worth standing for.
Not much about legal theory or stats there, I know. This is just one man's take. For my part, it's worth doing some thinking about why this case burns me so.
Clarification. It's not that every Black firefighter failed the test, its the fact that even those who passed weren't ranked high enough to be eligible for promotion. At least the impression I got from the Ginsberg opinion
Two points
First, I believe your "black dudes just have to compete" point oversimplifies the institutional biases against minorities. Its easy to say suck it up and move on, but when there's institutional discrimination that not only harms you but FAVORS your opponent, that's a lot to just "suck up."
Don't get me wrong, I agree with your point a lot more than I disagree with it, but in order to legitimize the competition society has to push for equitable playing conditions.
Second, one point that's being overlooked is the difficulties in getting a promotion in New Haven. From my understanding, promotion tests are held very infrequently. So it's a really big deal when candidates are excluded from promotion consideration
From Ginsburg's dissent:
More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant.
That stinks to high heaven. There's more. Read it.
"And the city was going to have a real hard time proving relevance. And legally, that's it, game over."
We don't know that at all. They had a company design the test with the fact that they had trouble in the past with disparate impact. Presumeably that wasn't done to create further disparate impact. And further they didn't take some of the steps which were later suggested (that the questions be reviewed by people in the community) because last time they had done that and been charged with favoritism in who looked at them.
They thought they had dealt with it going in, and it turns out they still had disparate impact. And at that point, they didn't try to look at the test and figure out what (if anything--because nothing wrong is still a very possible answer) was wrong. They just threw out the test.
it would also help if people who are commenting on legal matters knew something about caselaw and precedent and the basics of how and why courts are supposed to decide cases.
touchy feely concepts of "moral heft" mean absolutely nothing, so far as the law is concerned.
or at least it should mean nothing.
shameful.
really and truly shameful.
if you don't know anything about the law and its dictates, at least take the time to find out what you need to know before you offer opinions about stuff that is fairly significant.
I'm a lawyer myself and I'am somewhat angered by your comment. I strongly believe that a legal system is deeply flawed if it doesn't allow non-jurists to understand fundamental decisions and to participate in discussions about it. Moreover, I think it is the responsibility of jurists to avoid this. If you are of the opinion that Deva missed a legal argument, you should explain, you should help her understand the law. From my limited understanding (I don't practice in the US), the Supreme Court adressed Deva's point right in the beginning, where it stated that the "City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt". Wasn't that Deva's point?
I also get suspicous when lawyers speak of the law as something that is hard and stalwart, as opposed to something that is "touchy feely". Is this truly your professional experience? If you litigate a case that has what one could call a "moral heft", don't you try to stress exactly that heft and don't you expect a judge to recognize it? And if you look at the history of basic rights, would you not say that morality and law are concepts heaviliy intertwined with each other? I can't see how a jurisdiction could establish a legal practice with respect to something like discrimination without being guided by moral principles. I would say that this is where the law came from and where it always comes back to, in one way or another.
of course the law is not decided in the same fashion that a mathmatical equation would be resolved.
(although lots of law school profs might want you to think that is the case.)
but the starting point for any argument is always going to be statutes, cases, precedent.
what is the issue, the rule, how do you apply the rule and on and on and on...
after i've cited statutes, cases and precedent, then of course i will attempt to make an emotional appeal, based on morality, to the court, however that might be done in a particular case.
but i learned quite a while back that it would only get you so far.
reference to moral principles or moral heft that is not strictly related to specific statutory or caselaw imperatives has never been a particularly fruitful avenue to explore. perhaps your experience is different, but i've actually had judges cut me off in oral argument when i've tried to discuss those kinds of issues.
what is deliciously ironic about the idea of the city's position lacking moral heft is that the white litigants are attempting to prop up a system - hiring in police and fire departments - that has stubbornly resisted addressing deeply ingrained, racist hiring practices. there is statutory and caselaw authority that should have ended the institutionally-racist hiring practices that result in many fire departments being overwhelmingly, if not exclusively, white. yet, those institutions in many cities continue the tradition of hiring everyone but qualified minority candidates who might apply.
the idea that someone who argues that moral heft still must be established in order to justify attacking that system just isn't looking at the law, the history behind anti-discrimination litigation or what is right there in front of your eyes.
if moral heft is lacking at all, i'd say it is lacking where one argues that hiring systems that result in overwhelmingly white fire and police departments should be maintained.
woofwoof, at the beginning of this thread, makes exactly the legal point i would concur with.
this is really a simple case. it's only been made complicated because this court has become dangerously radicalized and politicized. and the idea that the city's position lacks a certain moral force is just astonishing, considering the entire range of legal, historical and political issues at play.
Thank you for your informative answer, frankie.
With all due respect, this is simply not true. The city did try to determine whether the test was biased or not. CSB, the civil service board in charge of certification, held five meetings with expert testimony ranging from lawyers, psychologist, firefighters, and even another testing company.
The fact is, CSB didn't throw out the test because they feared being sued, they threw out the test because their research lead them to believe the test was biased, and they knew they couldn't defend it in a court of law.