In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination.
It really takes reading all of Ford's article to fully get the sweep of his argument, I would say, but it breaks down to: Ricci, who apparently took 6 months off work to prepare for the exam and spent $1,000 on tutoring, maintains that the city threw out the test after the Hispanic and Black firefighters taking it didn't do well in order to discriminate against the white firefighters who (like him) did better on the exam (though it's important to note that a number of black and Hispanic firefighters did also pass the test, but the way the evaluations were set up, only the top three scorers are eligible for promotion).
Ford makes the point that other legal experts have made, namely, that the way Title VII of the Civil Rights Act of 1964 has commonly been interpreted is that what it calls "disparate impacts" on different racial groups are legally questionable in and of themselves. That is, it is quite possible that the black and Hispanic firefighters could have sued New Haven had it not thrown out the test, on the (precedent-abiding) rationale that the fact that no blacks and only one Hispanic qualified for promotion (out of over 40 blacks and Hispanics). (And yes, I know blacks can be Hispanics and Hispanics can be blacks, but let's not get into the complicated US parsing of race -- or the fact that USA'ers don't seem to realize that there are a lot of Black Hispanics/Latinos -- here) is evidence of disparate impacts and possible discrimination.
Where Ford makes an important addition to the discussion is where he discusses why this is not necessarily "reverse discrimination" against the whites, and exactly why the disparate impacts rationale holds up. That is, as we've talked about here on Anekantavada/the Continuum, institutional racism is a pernicious going concern in the US, and non-obvious. Title VII was designed to thwart not just purposeful discrimination ("No blacks or Hispanics") AND inadvertent discrimination. And when only 1 or so out of 40 minorities qualifies for a job, it's quite certainly possible if not likely that there was inadvertent discrimination.
But let me quote Ford, who says it better (if not any more succinctly):
Conservatives think the law against disparate impact discrimination does more harm than good. [John] McWhorter decries the "rhetorical contortions that excuse black people from challenging examinations." And Abigail and Stephan Thernstrom insist in the Wall Street Journal that even "sharp racial disparities" in testing results "are not an argument for racial quotas." Both McWhorter and the Thernstroms worry that a law that is premised on lower performance by racial minorities has become self-fulfilling: Such racial disparities, the Thernstroms admonish, "should not be regarded as a permanent fact of life."
But, properly applied, disparate impact law doesn't excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can't just put a "women need not apply" sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.
Of course, there might be a good reason to prefer people who are physically stronger—or who score higher on a written exam. The law gives employers a chance to prove that the discriminatory criteria are job-related. The idea, then, isn't to make an employer hire less qualified women or minorities over more qualified men or whites. It's to make sure the employer is testing for job qualifications, not unrelated ones.
Race discrimination has locked minorities into poor neighborhoods with failing schools for generations: As a result, blacks, as a group, continue to perform less well on written exams than other races. Perhaps New Haven's black candidates could overcome these disadvantages by studying harder, like Frank Ricci did. But Ricci took extraordinary steps to ace the test—six months off work to prepare and $1,000 on tutoring. An equal-opportunity law that's premised on everyone taking such steps isn't likely to do much good in the real world of scarce time and money. And would encouraging the equivalent of intense cramming for the final really help employers select the best firefighter for the job?
One of the things those who side with Ricci in this case say is that if a test was thrown out because only minorities were promoted as a result, it would be "an open-and-shut case of discrimination." Assumedly, they mean against the black test takers. But quite certainly, if the situation were reversed, people all over would look askance at the results? I mean, there may be some or many blacks proud of the achievement, but it certainly would be weird, right? And I can only imagine the kind of commentary conservatives would put on such a result, where only blacks qualified for promotion. Indeed, they would almost certainly by calling that reverse racism. And it would seem to me that under Title VII, they would have an equally strong case as the City does in this case. It would be statistically unlikely for that to happen by chance. Now, I can't say I would see it this way for sure if it were reversed, but I think we also all know it would be a surprising result that many would decry as being somehow discriminatory expressly because we don't expect blacks to uniformly outperform whites. This puts the institutional racism into somewhat more relief: whites have scored on average higher than blacks in any number of areas for America immemorial, and whether you think this continues because of institutional racism and unequal legacies from history (as I do) or because of some sociocultural or biological flaw, either way it would be surprising to see only blacks and Hispanics get promoted, even if in a majority-minority example (assuming it's not the kind of 98% black & Hispanic type disparity but rather say 60 or 70%). So what I'm saying is, I think many in our society would be MUCH more comfortable assuming a test which produced those results were flawed than they would be with a test producing complete over-representation by white test takers. But because we're used to whites doing better, it seems all the more galling that what Ricci supporters seem to assume is self-evidently a fair and applicable test would be thrown out.
If the situations were reversed, it might very well be open-and-shut discrimination case -- discrimination against the white employees in that case.
Two more things: if Ricci took 6 mos. off and spent $1,000 on tutoring, it also seems obvious that either the job training for the firefighters is deficient (if it takes that much effort -- so much that you stop fire-fighting for 6 mos. -- in order to qualify for advancement as a firefighter, then it would apparently seem like you can't learn enough about firefighting by actually doing it to be promoted), or that the testing is off. I mean, you can't (or at least, shouldn't) have to go through such extreme measures to advance within such a job -- we certainly wouldn't have wanted all of Ricci's colleagues to all take 6 months off at the same time to study! (Though I do believe I read he's dyslexic, so that might explain some or even all of the extreme effort he put in, now that I think of it.) In any case, it would seem like the only fair way to have advancement in such a case would be to have low-cost additional training available for everyone, so that being promoted didn't require that you have so much job flexibility and money. Second thing, though, is that people talk about it as if the blacks and Hispanics would have been blatantly unqualified to receive promotions -- but a number of them passed the damned test. Whether or not it's significantly important to take the 3 highest scorers depends on the content of the test -- which weirdly I have seen ZERO discussion of, so the question of whether or not it's completely and fairly job-relevant is unresolved -- but getting the highest score may or may not be relevant based on the content of the test itself, and on the other scores. If they were 95, 94, 93.5, 92, 92, 91 etc. and 70 was passing, the difference between the top scorers and the next several could be not practically meaningful.
Sigh. In my head, I'm hearing and thinking about various counter-arguments that I would expect from various friends of mine, so I could keep going on and on -- I was kind of trying to anticipate all the counterarguments ahead of time -- but that would go on even lONGER and I think that's unwise. So, yeah. Read Ford's piece -- I would in fact recommend it over reading all of the above (hah, too late) -- and think about institutional racism, and then, comment. Let's talk.