OK, I'm having a problem following your logic here. So maybe you can try following mine for a minute. Black and Hispanic test takers did not score proportionately as well given their representation in the test taking pool as white test takers so the test was thrown out. (I assume that the single Hispanic plaintiff is the one who passed the exam.)
It seems to me that the racial imbalanced results have two possible origins: 1) the test was racially biased against black and hispanic test takers, or 2) it is the product of chance. Now, to the best of my knowledge, no black or hispanic test takers claimed that the test was biased at the time of the test. So any bias wasn't apparent to any of the test takers, regardless of race. All test takers were willing to wait on the results, presuming that it was a fair and balanced exam. Also to the best of my knowledge, no post-test analysis has been performed on the actual test taken to see if there is support for the claim of racial bias in the test.
Other than perfomance, there is no evidence to support the claim that the test was racially biased. So it must stand to reason that it IS the fact that no blacks made it to the "promotion level" that the test was thrown out. The city did not get the results they desired. What the hell? This case is going to go to the Supremes without the test in question even getting a once over by the people in a position to evaluate such tests?
I am sure you are right that there is residual institutional racism in the New Haven fire department. But it seems to me that the problem lies within the department's flawed policies. Change the policies if they don't give you what you want.
I for one cannot see the problem with saying that gender and racial representation should reflect that of the broader community. Therefore, half the firefighters should be men, x% should be black, x% white, x% hispanic. If you don't like that idea, then take a job somewhere else.
BUT, a handful of firefighters have been denied promotion based on the criteria that the city said it would use to promote firefighters. I hate the idea of an all white supervisory staff there, especially given the community's racial composition, but you can't switch boats mid-stream. I think these guys have a legitimate case.
The real issue for New Haven will be how to design a promotion policy that allows more equitable representation without being discriminatory against minority (for their community) ethic or racial groups.
Finally, didn't Ricci take 6 months off work to study for this test? Surely he, and anyone else who did similarly, must be seen as outliers. What happens to test results when you take these couple of fellows out of the analysis? Who know? Maybe the playing field does seem more level. There is too much unknown here to presume anything about the fairness of that test. However, it seems incredibly unfair to me that the criteria were established and agreed upon by all participants and then the rules change because the right people didn't win the game.
Will be interesting to see what the Supremes say.
J responds:
Don't know if you read my prior post and the linked piece by Richard Thompson Ford. But the choice between "it's racially biased" and "it's random chance" isn't so easy as it appears. That is, it doesn't have to be racially biased in a way most would recognize ("these are questions black people somehow are less likely to know the answers to") but rather "the test (possibly inadvertently) gives advantage to whites based on greater access to certain types of knowledge -- the institutional history of most of them being nth generation firefighters whereas almost none of the blacks are anything but 1st gen. firefighters". It also -- the linked article makes this point -- relies strongly on "book learning" of (almost seemingly esoteric) knowledge of fires that doesn't apply to the job at hand to a high degree.
"Switching horses in midstream" is really not a concern to me. After all, fighting discrimination is by definition switching midstream. You don't get to benefit from it just because it seemed fair at the time.
It rather seems that the test was "fair" in that given the same amount of studying and background in firefighting, anyone could do as well. There are two parts to unpack here: one is that the white firefighters seemed to have a greater interest (due to family history and culture seemingly) and greater background in the "book aspects" of firefighting and thus did better on a test of such aspects; two, even presuming it was "fair", the law around discrimination (as I understand it from R. T. Ford) is that, if there is an equal or better way to test for skills related to promotion that would be less likely to result in disparate impacts, it is essentially a discriminatory act to use the test that ends up with disparate results.
That is to say, no one (except the firefighters who passed) argues that this test was the best way to determine their suitability for promotion. If there is a test that would better test such suitability, it should be used and this test should be thrown out. Since the test was not based on actual comportment in the field, people skills, or operational knowledge rather than memorized knowledge, one can easily (in my opinion) argue that it's not the best way to test for promotions. Whether or not discrimination was intended, if there is a better way to test for suitability that would end up with less disparate results, it should be used and this thrown out.
don't know if you read the articles linked in *this* post, but the test hasn't been publicly examined because it's proprietary and the company and city's contract doesn't allow it to be released. But the description makes it quite seem to me that the test is fair in the ways I described. But, that's the point of institutional racism -- you can set things up that are nominally "fair" and use them, inadvertently or purposefully, to end up with disproportionate results. Such disproportionate results are inherently suspect, and if there is a different and plausibly better way to do things, then they should be done that way, whether or not the intention was to discriminate.
It seems to me like this test was a case of "white privilege" -- the white firefighters in this case benefited from culture and history in a way they had no control over, but in a way that would tend to maintain a discriminatory status quo. As I said to my white colleagues at Procter & Gamble -- if you reasonably believe in equality, then in certain zero-sum situations like promotion, you *have* to believe that whites will be promoted less often then now. you can't both maintain the status quo of disproportionate power and achieve equality. And like the original SATs, which appear fair but which were explicitly instituted for discriminatory purposes (originally to keep out Jews, though it didn't work very well), you can't argue to maintain a seemingly fair solution if there are better solutions, especially when the present one, even unintentionally, holds people back.
And I completely agree with you on making things reflect community %ages, but people argue that a) this is a quota (which it is) and quotas per se have been illegal for a while now, and b) that this means "unqualified" people (minorities) will get in, and if you require some "basic" competence, then you return to defining what this competence is, and you almost never end up with a "basic" test favoring minorities (historically speaking, and if you do, you get lawsuits like this).
I guess this is one of the reasons I feel so strongly -- this to me is a case of white privilege, where the racism is not intentional or obvious, yet to leave things status quo means perpetuating "hidden advantages." I would propose that everyone taking the test get equal access to studying resources, but even then, the nth generation firefighters have an advantage, and since almost all several-generation firefighting families are white... well, there you go.
It's prickly, and hard to explain in writing for me, but by your definition, essentially, the white firefighters are as a group outliers (which is statistically an inviable proposition I'd say). Of course, the criteria established and agreed upon were not by "all participants" but rather by the union, on behalf of "all participants," but then, the union is majority white and split on racial lines and supporting the white firefighters. Hardly a good way to establish "criteria agreed upon by all participants."
If it only turns out after the fact that the "right people" didn't win the game, when the game doesn't necessarily test the most pertinent skills, then it seems to me that changing the rules is not unfair. There is no right to a promotion, and fairness is not "holding the rules steady" per se; like I said, if fairness were simply constancy of rules, then rules couldn't be changed in the face of discriminatory results. There is more to fairness than constancy, and not all institutional barriers are obvious before they are smacked right into.
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Several points.
First, I did not say that all white test takers were outliers. I said that Ricci who took off 6 months to study for the exam was likely an outlier, as would be any others who did likewise. If you study for a test for two weeks, and I lay out every night and cram 4 hours before the test, I would expect you to outperform me. And there is no way for you or I or the Supremes to judge whether such extreme study habits are the norm for test takers or if Ricci is simply more highly motivated to gain a promotion. In any event, his behavior seems highly unusual to me and I doubt that all test takers go to such extremes. Hence, my suggestion that he might be an outlier. Certainly the ability to take 6 months off work to study for an exam is not a racial issue, but an economic one. I suspect that very few of the white firefighters could afford a similar approach.
Second, I think you misunderstand me when I say "you can't change boats mid-stream". I am not saying that New Haven has to adhere to this test (or any other)in the future. I am saying that it seems inherently unfair to have begun the process of promotions based on the existing policy that says this test will be used to rank those eligible for promotions and THEN throw it all out because you didn't get the results you want.
I maintain that an employees have a right to take their employers at their word. At least one employee took time off from work to advance himself, and probably at great personal cost (loss of wages and potentially seniority, retirement, etc.). He did so because his employer stated that promotions would be awarded based on test performance. He performed well based on the criterion his employer agreed to use. If he is denied a promotion that he "earned" based on existing policy, he has been harmed and for that he should expect recompense. Simply stated, to deny him a promotion for being successful is not fair to this individual.
I agree, the test is unfair to groups and the criteria for promotions should be changed. But for this group of individuals who entered the promotion process under a given set of employer policies, promotions should not be denied because the employer did not get the desired results. This group should get their promotions and the fire department should figure out how to rank people on more relevant criteria. If they don't award these promotions, I think the plaintiffs have a solid case for economic damages.
What is weird to me about this is that one would expect the minority group that failed to pass the test to have to sue the employer to change their discriminatory practices. In this case, they are getting policy changes handed to them and the non-minority individuals who followed the rules are having to sue to get the employer to follow its own policies. This odd situation becomes less a case of discrimination to me than it is of a test whether the policies of an employer constitute a contract with its employees. I suspect that the latter is true.
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