[A. Serwer]
I've posted a number of immediate reflections on the Supreme Court's 5-4 ruling in favor of the white firefighters in the Ricci case over at TAPPED, which you can read here, here, and here.
The conservatives on the court decided that the city decided to throw out the test results "All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white." That's not what happened. There were a number of issues with the test the city failed to address before giving it that were brought to light afterwards, and the racial disparities in results made the city concerned that they would be liable for discrimination, so they threw it out.
Justice Kennedy argues that jurisdictions only have reason to fear liability in cases where there is a "strong basis in evidence" necessitating such concern. As Justice Ginsberg points out, this requirement is somewhat redundant, Title VII already requires the city to show problems with a practice beyond mere disparate impact.
What I find remarkable is that the above assumption of bad faith on the part of the city New Haven violates their own standard--there is nothing in this case, the composition of the test, nothing in the composition of New Haven's fire department ( blacks and Latinos comprise 30 percent and 16 percent of the City's firefighters, respectively, in a city that is 60% black and Latino) or even in the history of race in this country to justify the opinion that the city just doesn't like white people and doesn't think they should be firefighters. But if you believe, as Pat Buchanan does, that white men are the most discriminated against people in America, then the city's intent is clear. There just isn't a "strong basis in evidence" to support that view.
There are a number of problems with the test that in my view, favor those candidates with external advantages, and should have caught the city's eye to begin with. For one, the test materials themselves cost 500 bucks. If you're going to be levying a 500 dollar tax on people applying for a promotion, you're going to end up excluding a number of people who simply don't have the financial resources to compete. Most of the black firefighters on the force are first-generation, while white applicants, partially as a result of historical discrimination within municipal employment, were able to have access to certain test materials through relatives. Second, the focus on the written component, which was 60% of the test. Other cities, such as Bridgeport, noticed that a focus on the written test produced racial disparities in results--so they changed the test, and their fire department's leadership is noticeably more diverse. They didn't change the test just because of disparate impact, they changed it because the emphasis on the written component privileges qualities that aren't vital to being a good firefighter.
The focus on the written test is a pretty big red herring for me. I guarantee you that given the time, I could pass a written firefighter's test with flying colors, and at 5'6, I'd still make a shitty firefighter. In disparate impact discrimination claims, the burden is on the employer to show that the qualifications for employment are "proving that the test is job-related and consis-tent with business necessity." A written component as 60% of the final score? Not so much. Ginsburg noted in her dissent that Bridgeport "recognized, however, that the oral component, more so than the written component, ad-dressed the sort of "real-life scenarios" fire officers encoun-ter on the job." The content of the test was also partially based on New York's system, rather than New Haven's, which means that someone with less access to the material who was relying more on their personal experience as a firefighter would have been further disadvantaged. I can only speak for myself, but rote memorization is not the quality I would look for in a firefighter. I would liken it to an admissions office throwing out someone's grades--likely the best indicator of skills germane to being a good student--in favor of their SAT scores. I don't think the company that made the test intended to discriminate, there's ample evidence that they didn't. But that's what disparate impact is about--processes that aren't important to the job that have a disparate effect on certain groups.
So here's what I'm saying: The city had reason to believe the test was flawed, not only because how it was constructed favored things less applicable to actual firefighting, it advantaged people with more resources and personal connection to the department, and there are other ways to construct the test in which not only have more relevance to the job, they actually have less of a disparate impact. If the city had arbitrarily tossed out the white firefighters' scores and promoted less qualified minority candidates, that would have been one thing. But they didn't do that, the threw out all of the results--blame should be put on the city for having created a flawed test in the first place, but it's not fair to say that the white firefighters were denied their jobs based on the kind of longstanding racial assumptions about black intelligence and diligence that still often govern hiring decisions. No one in the city believed that the white firefighters were incapable of doing their jobs correctly because they were white.
The problem with the conservatives Justice's reasoning--in particular Sam Alito's preoccupation with politicians being concerned with the interests of black voters--is that it removes racial discrimination from all historical context. This is not like the kind of pervasive, deliberate, racial discrimination that was once a staple of hiring for municipal jobs, nor is it like residual systemic discrimination that favors candidates with certain external advantages that have nothing to do with ability. Throwing out the tests was, instead, the result of the city being careless in how it composed the test--unfair to those who studied for it, not just because promotions were denied, but because the test was flawed to begin with. There's no getting around the fact that Frank Ricci was wronged--but in my view, the city wronged everyone who took the test, period.
The city of New Haven believed that they might be liable for a Title VII discrimination suit based on the results of the test--and I think they had good reason, because there's lots of reason to believe the test didn't evaluate whether or not candidates would be good at their jobs. To compare, or even imply this is the same as the restrictive racial covenants that once dominated hiring in this country is wrong.
Ta-Nehisi is far more skeptical of AA than I am, and maybe I'll explain my reasons for supporting AA in another post. But I think I've rambled enough for now.
The Beautiful Struggle: A Father, Two Sons, and an Unlikely Road to Manhood 
Not rambling. A very good post.
Great post.
I think this is the problem with a conservative court; they can't rule any other way. Conservative ideology is so rigid that conservative judges essentially are predisposed to specific conclusions. I would argue that's not the case for more liberal judges.
You realize this is only 'conservative' because of how we colloquially use the term? If you want a fabulous example of 'radical activist judges', look no further than these 5 supreme court justices, who just created a law against the wishes of the citizens of New Haven.
When up is down and down is up,
upsidedownpoint
Weren't these the same justices that just said, in essence: "For future reference, strip searching students is illegal, but this guy had reason to think it wasn't, so he isn't liable"? At the very least, you have to admit that there was pretty good legal precendent to indicate that New Haven could have been sued for acting on the test results... So why not issue a similar ruling here?
Thanks for this:
That gave me some food for thought about this case that hadn't occurred to me. I also like what you said about the case being looked at absent of any historical context.
The issue of the written component, I am still uncertain about. Should we accept into perpetuity that some African-Americans and Latinos will always score lower on the written component of a test, and change the tests accordingly? That troubles me.
Judging from the various comments in the various threads here, I think what's causing the general queasiness factor among a lot of the commenters here is simply the issue of fairness. The general thought is that maybe it was a poorly designed test, but once the city committed to it and people went out and spent a lot of time and money studying for it, morally there was a sort of promise made and the city should have stuck to its plans unless there was serious evidence of actual bias in the test beyond just the results of the test.
I don't want to put words in their mouth, but I think that's the general area of argument that TNC, Deva and a host of others are making.
Now, I realize that's not the law, but we're just talking basic fairness here. And I can't tell from your post: do you just completely reject that argument, or do you think that things like the cost of study materials were enough to show actual bias in the testing?
I don't think he completely rejected it, because he does point out that Ricci was wronged. But he also goes on to say that anyone who took the test was wronged. But let's be honest here, there are degrees to getting screwed over. Regardless of the ruling being correct or not, what can you say to a guy who is a 1st generation firefighter, bought the book, studied and passed the test, only to have the results thrown out? Sorry? Some people were wronged much more than others, so it is a bit disingenuous to say that "the city wronged everyone who took the test, period." The 'period' doesn't really work here.
A. Serwer wrote: But that's what disparate impact is about--processes that aren't important to the job that have a disparate effect on certain groups.
And that, in my view, is why disparate impact analysis is a flawed approach. If there is genuinely no discrimination involved (i.e. criteria aren't being selected as a pretext to discriminate), what's the problem? The study materials are expensive, so anyone who can't afford them will be at a disadvantage, regardless of what race they are. *shrug* I don't see why racial issues are implicated at all.
I agree more with the historical perspective that Ginsberg spoke from in the dissent. The cost of test materials just isn't a valid excuse. I'm sure they're available used, on Amazon or from a library. Moreover, if that's a valid measure of bias than SATs, LSATs and all standardized tests would be inherently biased. The argument against the percentage of the test that measures written skills seems closer to on point - but I'm still wary of arguments that in some kind of way infer that the black firefighters legitimately couldn't score higher.
Do you have a copy of the test?
I'm sorry but as a black attorney, I think it is safe to assume that the LSAT IS inherently biased. There is a reason why two Stanford professors are working on an alternative exam.
If there wasn't a bias on the LSAT please explain to me why only 30 or so blacks who applied to Univ. of Michigan scored over 167 out of thousands compared to whites.
I attended a Top 40 law school, graduated phi beta kappa from my undergrad and held a 3.6 in law school but scored a 151 on the LSAT. I know many other blacks who were in my similar situation. Definitely a bias.
I had a similar experience: when I applied to law school back in the Pleistocene, my LSAT score almost certainly put me in the bottom quintile of those admitted. Yet I graduated in the top quintile. IOW, in the following three years, I "passed" the large majority of people whose LSAT scores indicated that they were more "qualified" for admission than I was. Upon graduation I took the New York and New Jersey bar exams at the same time and passed both.
Your and my experiences suggest that perhaps, just perhaps, there is something less than infallible about the predictive power of standardized tests. It would if the other side were actually arguing in good faith or at least had given the matter some serious thought.
Could you describe what perceive the bias to be from your perspective of an intelligent African American who underperformed on the exam (relative to other academic achievements, I mean)?
The idea of test bias has always been a curiousity of mine. I have to admit that I've been dubious of claim from time to time. I recognize the argument that things like economic bracket (which disproportionately impacts minorities), as well stereotypical anticipation could easily affect scores, but that doesn't really describe a flaw in the test as much as it does illustrate accepted and understood flaws in our society.
So, given your experience, can you describe what it was about the LSAT that you felt was biased against you?
I grew up in what would be considered a middle class two parent black family but my parents could not afford to send my siblings and I to private schools. Oakland public schools have been bad since forever but I was fortunate enough to have two parents who understood that I could make it through the public schoool system so long as they were willing to invest the time necessary to make sure I got the necessary education to at least get into college.
The problem is that I got an education and was in many gifted programs throughout my years but when I got to college I felt lost and in many ways-dumber than my peers who came from upper middle class backgrounds. For instance, I read The Great Gatsby the summer after my first year of college.
The LSAT is designed by upper middle class folks who most likely have not had any experience in inner city school districts in which the education unfortunately is different and at many times unequal. In addition, the LSAT is designed to discriminate and whittle down the applicant pool to just a few. Those that come from backgrounds that provide them with the highest quality education, are advised early on about what one needs to do to get into law school and actually survive in law school, and can afford the average cost of test prep-$2000-will most likely do well. The rest of us-not so much.
Guess who is most likely affected by this?
So, generally speaking, it's an argument about socio-economic bracket disproportionately impacting minorities, eh? Okay. Like I said, I think that's clearly a persuasive argument. I don't know how you'd go about creating an entirely neutral test, though.
@BreakerBaker
But I was told that the LSAT IS neutral! Oh, wait.
How about having a diverse group of those from various backgrounds develop the test. I'm not going to mention the names of those that create the LSAT but they are all quite similar in their backgrounds and their perspectives and in my opinion are elitist hacks who believe that the status quo is quite okay. Adding the names Lakeisha and Jamal to the exam is not going to change the structural bias' of it.
"Moreover, if that's a valid measure of bias than SATs, LSATs and all standardized tests would be inherently biased."
I would argue that they are. It's why SAT scores are, in my view, a very poor indicator of who would be a good student. If you can afford copious amounts of materials or an SAT class, you're inherently advantaged by class, and it's easy to see how this might disparately affect black applicants. At the same time, it's obviously not a perfect metric. I'm biracial, and my parents were able to afford to help me with that stuff.
Conversely, my best friend, whose mother informally abdicated custody via drug addiction, got the same SAT score that I did. Due to a number of factors, including an unstable home situation and lack of a supportive family structure, he was unable to get the same grades I had. But you know, I'd be the first to admit that he's probably smarter than I am. I went to Vassar, he went to Delaware state. With student loans, I was able to go on to grad school. He couldn't afford a second year.
Where we ended up is partially a function of individual effort. But it's also in large part due to access to resources. That isn't a trivial issue.
I agree that access to resources and access to opportunity are a large part of where we end up. I just want some hard evidence that the SAT, LSAT and any standardized test is biased - and if the bias is a result of the lack of access to resources, why not fix that instead of scraping one test for another?
thanks Adam. good post. Wish you'd post this over at another blog...hint hint..LOL
Move along...
[quote]The study materials are expensive, so anyone who can't afford them will be at a disadvantage, regardless of what race they are. *shrug* I don't see why racial issues are implicated at all.
[/quote]
Because you can design criteria that have nothing to do with race, but are still designed to exclude a group. Poll taxes are an example of this. Everybody follows the same rules, so what was the problem with poll taxes again? The problem with poll taxes is that they were specifically designed to exclude everyone but white males, while giving the appearance of being fair.
I'm not saying that New Haven did this, it appears they made a good faith effort at preventing this exact situation. However, I offer it as an example to why we use disparate impact.
Oh I absolutely agree that pretextual criteria that are designed to surreptitiously achieve a discriminatory outcome should be invalid. I'm just talking about criteria that are adopted in good-faith. I don't think that a disparate impact in and of itself is problematic. I only object when there's discriminatory intent involved.
I'm just talking about criteria that are adopted in good-faith.
I think that the disparate impact is just an easier criteria to argue for or against. It would be hard to prove that somebody made or didn't make a good-faith effort, but it's much easier to prove the results. Especially, if you can get large enough numbers to make a statistical analysis meaningful. The goal is to make a test that does not have a disparate impact and it's not good enough to just try.
Let us not forget that the all the firefighters who applied for pormation were in the same lower position, meaning same paygrade, so five hundred bucs for a white junior fireman, ment the same five hundred bucs for a minority.
It would probably be a safe bet to say that studying materails were readly available, the firehouse probably had these materails. It is a fair speculation better then the speculation that white firefighters have been passing down cheat sheets and study guides from generation to generation.
It is nice and easy to say that test should have had more physical and situation type testing but that is still no reason to throw it out.
Fear and exortion is no reason to throw out test results.
The Court made the right choice.
Actually, Just in Time, the study materials were NOT readily available, which you'd know if you actually the case. From Ginsburg's dissent:
"At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and 'wait a month and a half for some of the books because they were on back-order.'"
Month and a half seems like a long time to me. Also, they were basically the same materials as used on past tests, so the 3rd generation firefighter didn't have to pay any money, they got old materials from a friend or family member for free.
And the Court did not make the right choice, because it did not interpret Title VII in the way it was intended, nor in the way that it has been interpreted by federal courts for decades.
People may not like disparate impact on principle--it is a little difficult to wrap one's head around--but it's the law, and it was voted into law by a democratic majority. The case should've been upheld or at least remanded.
Your point is valid. But that attitude really isn't conducive to dialouge. It's unnecessary.
Point taken, and I admire your efforts to keep debate civil, but I think it's valid to point out when someone is talking about "safe bets" and "speculation" where there is no need to guess about the facts. They're plain and in the opinion the person is trying to discuss. If someone clearly doesn't know what they're talking about, I will point it out. But I'll try to be more polite next time :-)
I haven't read your whole article, but one problem with your analysis is that you've taken on the role of knowing (somehow) that the test was discrimanatory. With all due respect, your simply not qualified to make that determination, nor am I.
It's just a bit comical that you suppose that no one that's 5-6 would be a good firefighter and though you may be right for yourself personally, you're status or stature simply doesn't matter, but it is a funny andecdote.
The better approach may have been (and may now happen) would be for the City to "certify" the scores, so that the test could have been reviewed by people qualified to undertake such a review to determine if there was undue bias created by the test document itself.
It's interesting to note that 16 out of 25 whites (68%) passed the captains test, 3 out of 8 blacks (38%) passed the captains test and 3 out of 8 hispanics (38%) passed the same test. What does this tell us? For sure it tells us that some of all of the races (that took the test) passed the test.
The bottom line is this: whether the guy is a 5-6 hispanic or a 6-5 black, if he saves you from a burning building, you're gonna be very grateful the right guy was hired to do the job that saved your life.
Interestingly enough, the court has previously addressed height requirements in fire departments as having a disparate impact on Latinos and women. I was kidding when I wrote that, but I think you're right, height doesn't really matter that much, there are other reasons why I'd probably make a poor firefighter. But your argument leads to another question about disparate impact, if you don't think height has anything to do with being a good firefighter, what do you make of height requirements? Do you think they shouldn't be illegal simply because some women and Latinos inevitably meet the requirement, as you argue on with the disparate test results above?
Also, the city did evaluate the test with an appointed body that heard testimony on both sides and decided to throw out the test. I'd recommend reading the whole opinion, but particularly Ginsberg's dissent, which I think has the most complete account of what went down.
When you go through law school they try to tell you that if you are just smart enough you can find the logical thread that runs through case after case that appears to be contradictory or very much disconnected from precedent that should control.
This case is one of those cases that puts the lie to that myth.
I got into plenty of trouble in law school classes as I argued that,
no, no matter how a court tried to rationalze its ruling, it had simply made a nakedly political decision because that is what it wanted to do. Precedent - and the law! - be damned.
This case - along with a bunch of other recent cases from the Roberts court - goes a long way towards proving my point.
to frankie d,
Ive not attended law school, but in theory I agree with you 100% and especially since law is largely a word game it (the law) gets "spun" by words.
However, as Dylan once wrote, your point of view becomes trapped as soon as you speak it.
I.E. the exact same sentiment could be expressed about the lower court (Judge Janet Bond) "...there is a total absence (say what?) of any evidence of discriminatory animus toward (the) plantiffs"
Just like in baseball a curve ball right over the plate that is usually a strike gets called a ball. An umpire misses a call and a judge can spin the law to have it break in the direction they want to make the call. Is it right or wrong? I can't say, but it is reality and it does happen as you were so readily able to point out as a law student.
The way the "call" goes depends on how you "spin" the words around the law, but it also depends on whether the ump behind the plate happens to lean a little to the left or a little to the right. It may not be pretty, but it is what happens, no doubt about it.
If you can afford copious amounts of materials or an SAT class, you're inherently advantaged by class, and it's easy to see how this might disparately affect black applicants.
Not if you know that poor whites (and poor Asians) outscore wealthy blacks and Hispanics on not only the SAT, but the ACT, the LSAT, IQ tests, and any other intellectual ability test you can think of. Whenever anyone says that income is the best predictor of a test score, they are, sadly, wrong. Within race, scores rise with income. But race is a better predictor of test scores than income.
Only 6% of African Americans get above 600 on any section of the SAT. And presumably, more than 28 blacks who applied to University of Michigan were middle class or higher. It's simply wrong to argue that the higher poverty rate of blacks explains the lower scores.
It is also profoundly dishonest to argue that lower scores themselves are evidence of a biased test. It assumes facts not in evidence.
There's a great deal of debate on what, exactly, is the cause of blacks and Hispanics scoring up to 1 SD lower than whites and Asians. But it's not test bias, it's not income, and it's not environment (unless by environment you mean dropping a baby on its head).
With all due respect, your simply not qualified to make that determination, nor am I.
Exactly. Moreover, New Haven spent a ton of time and money trying to create an unbiased test. Yet all those opposed to the Ricci decision (and Ginsberg herself) act as if the city just pulled the test out of the KKK Big Book Of How To Advantage White Folks.
Yet all those opposed to the Ricci decision (and Ginsberg herself) act as if the city just pulled the test out of the KKK Big Book Of How To Advantage White Folks.
I'm not sure I've heard anything like that in this forum. It seems like everyone here agrees that New Haven did make a good faith effort to not create a biased test. However, the question is that is this enough. If you look at disparate impact it's not enough to just try, you need to succeed. The SAT is a bit different in that it's not the sole criteria for college admissions. One of the main problems with this test was that unless you are in the top 3 for your position, you can't be promoted.
Ok-so then we can agree that there is a bias, right? As I stated above I think it is important to keep in mind who are designing theses tests and the actual purpose of these exams. The whole purpose of these exams is to weed out applicants thus discriminate. Unfortunately, those that tend to be most affected by these exams are blacks.
I was listening to NPR in the drive in and they made a point I don't hear many people making, the city didn't decide the make-up of the test. The union did. Union rules required that the promotion exam be 60% multiple choice. The city could have made an effort to persuade the union to alter that requirement (to my knowledge they didn't), but it's probably unfair to blame (as I and others here have been doing) the city for using this kind of test in this instance. For whatever that's worth.
Does anyone know if and where the actual test might be posted?
I had a friend back in 1971 who took the LSAT. He was furious. One question asked what instruments are in a four string quartet? My friend knew the answer but he realized this was a class and probably race biased question.
Wow, maybe I should take the LSAT!
I'm middle-class, and white, and extremely well-read. Heck, I was reading TIME magazine cover-to-cover at the age of 8 and Ron Kovic's Born on the 4th of July at the age of 9. Needless to say, by the time I hit the SATs, with piles of novels in my wake, I figured the reading comprehension section would be a breeze. The math section, not so much. I struggled with math and science throughout school.
Imagine my surprise when every excerpt for reading comprehension questions was right out of The Lancet, by way of the Journal of Physics G: Nuclear and Particle Physics. It was only when I talked to friends who took test prep, either on their own or through Kaplan, that I discovered this was the standard content of such questions, and that the first thing SAT tutors would tell students is that, if they were expecting excerpts from William Shakespeare or George Eliot or James Baldwin, think again.
"There's no getting around the fact that Frank Ricci was wronged--but in my view, the city wronged everyone who took the test, period."
Except for the fact that the city didn't determine the make-up of the exam, I think that's a fair point. Of course, Frank Ricci was wronged twice. I don't know how severe his impairment (i.e. dyslexia) is, but it's probably fair to say that he was as disadvantaged as anybody when it came to passing a written exam. But he did pass. He had something like the third highest score.
I think TNC said earlier that he wasn't really moved by the dyslexia angle. I agree that it shouldn't be the cornerstone of the case, but it's illustrative of the point that gets to the fairness issue which is the cornerstone. This is to say that yeah, over and over in our lives we're going to be in situations where we're forced to compete against somebody who seems to have an unfair advantage over us. There's no such thing as a level playing field. But people need to know that they do have the opportunity to succeed. That if they play by an established set of rules (even if, as in the case of Mr. Ricci, those rules put them at a distinct disadvantage) and succeed, they're not going to be denied that success due to the color of their skin, which is precisely what happened here.
Of course this argument runs the danger of sounding like a Pat Buchanan style, plight of the white man rant, I don't mean for it to. It's true, there's a fairly apparent fundamental flaw in an Affirmative Action that relies so heavily on establishing racial or gender quotas that employers or schools can be forced to cast aside applicants who, by objective metrics, are shown to be more qualified in favor of those who satisfy a desired result. One needn't have the self-awareness deficiency of Pat Buchanan to understand why that's unfair. One needn't believe that white men are the most discriminated against group in the United States to understand the simple truth that white men do face regular racial and gender discrimination in the name of racial and gender equality. The question is whether and how this wrong can be justified in that it is designed to offset other prevalent historic inequalities that white men continue to benefit from today, i.e. do two wrongs make a right, or maybe a less wrong?
I think the obvious answer to this question is, a lot of times, yeah, kind of. But Christ, not always. Sometimes, some people get screwed. It's not a perfect system for anybody. We should be trying to perfect it.
Personally, I think the court came down on the side of justice, although an imperfect one.
It's not clear to me exactly how many white men face "regular discrimination" in the name of racial and gender equality, and to what extent, and of what nature. I think people often greatly overestimate the reach and impact of Affirmative Action.
Moreover, I think some context is in order. It needs to be said that a lot of these efforts are also rooted in a deep and pervasive discrimination which continues to plague society--not just in the past, but now.
When you have a city like New York where, according to some studies, a black man without a record faces the same amount of job discimination as a white man with a jail record, you have to consider that.
Let me throw in another wrinkle--It would be wrong to say I got this job at the Atlantic because I was black. But in another sense it would be exactly right. My employers no that my life experience, much of it derived from the color of my skin, allows me insights that someone else may not have.Is that discrimination against white men? Is that wrong? Am I a simple product of reverse discrimination? Is the Atlantic's effort to have something more than a roster of Ivy Leaguers, in effect, discrimination against the best and the brightest?
I don't raise this frivolously. Affirmative Action has been a hotly contested subject in the field of journalism.
"Moreover, I think some context is in order. It needs to be said that a lot of these efforts are also rooted in a deep and pervasive discrimination which continues to plague society--not just in the past, but now."
No doubt. That's what I meant by "historic inequalities that white men continue to benefit from today." I didn't mean that everything is equal today and that Affirmative Action was a antiquated idea. I meant that there are old inequalities that present themselves in less overt, but no less real, ways today. I see how my wording could be a bit unclear on that end.
I didn't mean to be making an anti-Affirmative Action argument. I mean to be saying that Affirmative Action is a system designed to correct so many pervasive wrongs that it is almost inevitable that it's going to do it in clumsy ways. It is designed to create an artificially level playing field in the job/education market (artificial because of the inequalities you rightly note continue to plague society), so it inevitably disenfranchises some people to some degree. That is a necessary biproduct of the system.
What I was trying to say is that I believe the law as it stands accepts the clumsy nature of Affirmative Action because it understands the reasoning behind the system; that it accepts the inequality the system creates as a kind of collateral damage in the larger war for equality. I think that's perfectly reasonable.
I do think that the law should be predisposed towards some kind of fairness though, and in this case, I believe the court made the just (if not the legal) decision.
I basically agree with all that, but in the back of my mind sometimes I feel like the conservative stereotype of an AA supporter. I'm white, male, upper middle-class, and working in a profession (computer programmer) where I'm unlikely to ever be directly affected by AA, which I generally support.
But, to be honest, if you put me in the situation where I actually had to deal with it, I suspect my feelings would change pretty quickly. I probably couldn't *prove* my hiring process is a business necessity (who could, really?), I have no doubt that people with money have an advantage in terms of access to study materials, etc., and despite my continuing conscious efforts, I can't deny there's disparate numbers in terms of race and/or gender in almost every place I've ever worked.
And if asked, I'd suggest that those disparate numbers are due to historical and current unfairness in education, culture, etc. And in theory I want to be part of the solution, but in practice I really don't want to deal with somebody's substandard work on a daily basis.
You're absolutely correct that the "reverse discrimination" effect of AA is generally greatly overestimated. But, no matter how small the effect, we're still talking about real people being affected.
Responding to you both, I basically concur. I have my own issues with AA, which I've discussed. I think the question for me, is knowing the world isn't fair, not really believing that a government can create a level playing field, how far should it go? What are the limits?
It's amazing to me that many of the comments here and in the other posts reveal that very few of the people who are responding have actually read the facts of the case and don't really understand what the city did nor why. Read the case. Then comment.
The city did not state that they threw the test out because of the result in fact that is not what they did. The record shows that the results were so skewed that they decided to review the tests and process. They conducted an investigation where all stakeholders and subject and test experts testified.
Tim Wise does a good job of summarizing the heart of the issue and pointing out the major flaw so many of the summaries of the case in the media have had:
"According to the Journal editorial, New Haven officials "don't deny that their decision was based on race." But as a matter of fact they do, quite strenuously. And never, contrary to the claim in the Journal, have they argued that tossing the scores was necessary because of the need to promote diversity in the fire department... They are not arguing that merit should be cast aside so as to promote racial balance, or so that black kids will have someone to look up to. Rather, it is their position, amply documented in the record, that the tests on which Ricci and the other plaintiffs did so well, and on which blacks did so much worse, were invalid indicators of ability. As such, throwing them out did not amount to sacrificing standards, and did not deny Ricci or the others anything to which they were morally or legally entitled. To be promoted on the basis of a flawed exam is not a right, philosophically or constitutionally, that either Ricci or any other person can claim to hold. That the Journal implies "diversity" is the only reason offered for throwing out the scores--when it was not even among the reasons offered--suggests a duplicity uncommon even for such persons as these."
The Supreme Court made the wrong decision. Gingsburg's dissent carefully explains and lays out why it is the wrong decision.
Please read the case.
It's worth quoting, specifically, who and what you disagree with. In this instance:
You seem to make a distinction, without much of a difference. To say that the city did not throw "the test out because of the result" but that they threw them out because "the results were so skewed" dosen't really challenge much of the commentary I've seen written here.
Please quote what you disagree with, and then bring some evidence to dispute it.
The difference a couple of days makes. I'll respond by adding my thoughts which are now different because comments are different. But there are ideas that I would like to respond to:
TNC writes:
"To say that the city did not throw "the test out because of the result" but that they threw them out because "the results were so skewed" dosen't really challenge much of the commentary".
Definitiely poorly worded on my part, what I was trying to say is that I believe Ginsburg's account of the facts which states that the skewed results made the city worry about the test. This led to 5 days of hearings and testimony through which the city began to doubt the effectiveness of the test's ability to actually test the skills deemed necessary for these positions, and that there existed other tests adopted in various cities that actually test these skills. They worried that the test was a poor test of the necessary skills and that is why they made the decision to throw out the test. The results was a read flag but it was not the main reason that the test was thrown out.
Dwayne Betts writes:
"I just want some hard evidence that the SAT, LSAT and any standardized test is biased"
Standardized tests have biases in them that are related to gender, culture and class. From Fair Test.org "The SAT consistently under-predicts the performance of females in college and over-predicts the performance of males. Although females earn higher grades in high school and college, their SAT scores were 26 points lower in 2006. College Board research has shown that both the Critical Reading and Math portions of the test under-predict girls' college performance" (http://www.fairtest.org/facts/satfact.htm).
Another way to look at these issues is to look at the type of excerpts and how the questions are worded. As a society much of what has been considered "standard" or "normal" is embedded in white cultural norms. These norms are not necessarily obvious to people who fit within this culture (and I don't mean to overgeneralize but there are large group dynamics at play) and who are often the very people who are supposed to evaluate or eliminate this bias. Everything from the wording of questions to the writers or essays that one choses as influential or important and therefore essential excerpts for a "standard" test like the SAT come out of a cultural perspective of who is great, important or influential.
Your Arthur Miller maybe my August Wilson.
For more about this read this article http://news.medill.northwestern.edu/chicago/news.aspx?id=35935.
I would just like to say that I can not help but notice that whenever affirmative action is brought up it usally is involving blue collar proffessions[ BTW ,I do not consider it an insult to consider firemen blue collar,I hope nobody else does].
The exception would be college admissions .But that is exactly when many wealthy white liberals start to get uneasy about affirmative action.
I can not and will not speak for all blue collar whites . But one common feeling that i have encountered over the years is that almost all blue collar whites ackowledge America's racist past.But they can not understand why they have to pay the price while the rich whites do not.
I grew up in a white working class and middle class neighborhood in Prince Georges County [outside Washington DC].And I remember how some white neighborhoods had to be bused to schools miles away , while the richer white neighborhoods did not take part in the busing program.This is why i think that programs like busing and affirmative action are unpopular in many blue collar white neighborhoods.
The Republicans have been exploiting these feelings for years.But in doing so i feel they have been playing on class resentment rather than racial rsentment[ obviously this is not always the case].
If we really want more black people to go to college why not get rid of the legacies [ I think that is what the rpogram is called] who get to go just because of their parents being alumini.Or why not improve inner city schools.Because it is much easier to enact a few affirmative action programs which will not affect rich whites.
By the way, I am a white construction laborer who has grown up around blacks and whites and i have personally never known any white person that lost their job to affirmative action, or any black person that got a job through affirmative action.This may be anectdotal,but it leads me to think that affirmative action is not that widespread.The simple fact that black unemployment is higher than white unemployment also seems to prove that it does not have much of an impact.
That is my main problem about affirmative action.I think that in the end it does not help many black people ,but it does give the perception that blacks are getting a "free ride" [I myself to not have that perception]. It seems to me that it lets rich whites off the hook on making hard descisions and letting them throw black people a few firefighting jobs instead.
I am not saying that this case is not important[ and kudos to MR Coates for the way in which he is covering it]. But in the end I think that affirmative action is a distraction from the much bigger issues.
I fully ackowledge that i see this issue through a white mans eyes.And I do ackowlege that there are pros and cons either way .
What I wrote above is just one mans opinion and i hope that no one is offended.It can be a very emotional issue on both sides.
While I am at the computer ,I would also like to say one more thing .
Much has ben made here about SAT scores being lower among blacks than whites and about whites being better than blacks at tests.
It reminds me of an article that i read a few years back that claimed that if you compare the top 20 percent [on international tests] of Americans to the Japenese top 20 percent , the Americans score higher. The next 20 percent does as well as the Japenese. he author did not mention the middle 20 percent ,but he did say that the bottom 40 percent of American students performed so badly that they could not even be compared to any industrialised country's students. His point was that the bottom 40 percent was dragging down the overall average.He said that this is why we have terrible scores overall in America ,but still have some of the smartest kids in the world.
He did not mention race.And obviously there are many white kids in the educational underclass that he was writing about [ needless to say blacks do not make up 40 percent of Americans]. I myself could probably be considered part of the educational underclass[ I am a white high scool drop out].
My point is that I think that the reason for the OVERALL test scores on SATS and other tests being lower for blacks than whites, might have something to do with the lower performing black students bringing the average down.
This of course would seem like pointing out the obviouse. But my point is that the lower performing students scores might be so bad that they skew the test averages.While the black educational underclass is only a minority of black students, they are large enough group to bring down the average black scores.
Their is a white educational underclass ,but they may make up a smaller percentage of white students.
My overall point is that if the" average " black SAT test scores for blacks is lower than the white scores this does not mean that whites are "smarter ". Nor does it necesarialy mean that the SAT tests are biased or that the results are because of racism. [I have never taken SATS so i will not claim to be an expert].
I'm sorry to write so long a comment . But it bothered me that so many people were focusing on black SAT scores being worse than whites.Even if their intentions were honourable, their bringing it up did seem to imply that whites were somehow smarter than blacks [Even if they did not mean to].