a) In their entries, Allan and Bazelon lay out a still-common history and present of discrimination against minority firefighters, such that majority Hispanic and Black neighborhoods have had and often still have majority white firefighting forces, and even further, have stratification such that the supervisory levels are quite disproportionately white, along with
b) In this case, the white firefighters are predominantly from almost-totally white neighborhoods (~95% white) outside of the city they serve, New Haven, while the minority firefighters are mostly residents of the city. In entry exams, city residents get a slight (5%) advantage, on supervisory applications, there is no preference for those who live in-city. (It seems to me that living in the place you serve as a civil servant is a logical thing to preference for, if not require or distinctly advantage -- there's something to debate here, but I think you should be an explicit member of the civic community you supposedly serve for a variety of reasons, and the very least, this should likely be preferenced/encouraged in perhaps positive-incentive ways if it were not to be required). Further, in this specific case, allegedly some of the white firefighters "joke on the phone about 'working in the ghetto.' [Black, female New Haven Firefighter Erika Bogan asked] 'How dare you, when you live in Madison or Guilford, come in here and take our money and go back to your communities and talk shit about New Haven?'" I don't know that this has entered the case, but such casual disdain -- even as a joke -- speaks poorly of a white "civil servant" who doesn't even live in the place he's "serving." (It just compounds the problematicness of the whole thing -- at least if he lived in the "ghetto" he'd have the social "right to speak" ill of it by being a part of the community, rather than an "outsider" ridiculing it.)
c) The tests were based almost wholly on memorization and technical details of firefighting, items which don't even (apparently) apply to the majority of cases faced by the New Haven dept. (which are emergency calls, often medical in nature, according to the article). In other words, the tests don't have an apparent relationship with the actual on-the-job performances and requirements of firefighting in New Haven.
d) The firefighter's union chose to support Ricci (the white firefighter), despite accepting dues from all the firefighters, of all races; when a court ruled they couldn't back Ricci in court, they still spent union funds supporting his case, despite protestations (and an impending suit) from Black firefighters. This seems to me to constitute another form of institutional bias; it clearly should've sat out of this case in this manner, attempting to see the interests of all of its members. (One could argue it sees this supposedly "neutral" test to be in the interest of all of its members, but when the vote went straight down racial lines, it seems to me paternalistic and institutionally (i.e. not individually or purposefully) racist to then honor the requests of the majority-white vote.
e) The way the test was designed and conducted -- little input or review by outside experts (to avoid potential cheating, apparently) and out of step with what appears to be best practices in many other municipalities -- seems to me to further indicate the possibility of systematic unfairness and, importantly, to indicate that it is not necessarily the best way to determine promotability. This is one of the cornerstones of the "disparate impacts" bit of discrimination law -- if there's a better way to assess ability that is less likely to affect races differently, then (from my lay interpretation) it appears the city did the right thing in vacating the test.
f) Scalia apparently said at oral argument that he doubts the city would've done the same thing had the situation been reversed and almost exclusively black firefighters got promoted. ARGH. That just sounds so FUCKING ignorant to me. For one thing, that seems unlikely -- actually, if someone can point out an example of that happening, I'd like to know, because the very fact that all blacks doing better than all whites on a job exam seems to be rare if not non-existent points to me to the persistent and lingering problems of institutional racism, which is the very spur for the city's interpretation of the law that Ricci is challenging. Besides which, if that happened, wouldn't the white firefighters seem likely to challenge it? And wouldn't they, perhaps, have a point? One cannot simultaneously maintain that the white firefighters would be right to challenge the results in that case, and that they are right to challenge it in this case, without the logical implication that the point is that the white firefighters are entitled to do better automatically. And the white firefighters would likely be right to challenge it should the results have been nearly all-black. And if the city's behavior in THAT case would possibly be illegal, it is possibly illegal in this case. To be logically consistent, if he's going to find for Ricci in this case, Scalia would have to think that a case where only blacks were promoted would be prima facie legal, I think. (Despite the Latin, I'm not making a specific legal claim since I know nothing about the practice of law.) Bottom line: that sounds potentially discriminatory to me. In the end, this objection sounds suspiciously like "Oh, the city is just too obsessed with promoting BLACK PEOPLE," which is a stone's throw from "Political Correctness is ruining us all" and a good ways down the road, but on the same road, as calling them "Nigger lovers." Really, Scalia just disgusts me with that (though I know that's in part visceral and not logical, but it still, to me, trades on racial anxiety in a deceitful way.)
Anyway, I actually did talk at length about all that. Ooops. Time for showering and eating and writing actual academic work.
So, I'll leave off here with a quote from what seems to me to be a (rare) exceptional bit of writing from Slate (and an exception to much of Bazelon's recent production, despite my overall fondness for her as a writer based on memories of articles I liked long ago):
To young black firefighters like Mike Neal and Erika Bogan, that sounds like a solution. "We want to be on a level playing field," Neal says. "We want everything to be given to us on our merits." Ricci's group, on the other hand, feel as if they've already earned their promotions based on merit. They did what the city told them to. It's hard to imagine how they'll feel right about starting all over again.
Neal and Bogan's conception of merit is different from Frank Ricci's. It's easy to see why. Ever since the test results came out, the black Firebirds and the white plaintiffs have had opposing interests. Stretching back further in time, back over the decades, the two groups also see the history of the department through a different lens. For Frank Ricci, the past is a story of ethnic heritage and family pride. For Mike Neal and Erika Bogan, it's a story about breaking the lock on hiring that kept their people out.
Maybe promotions based on an assessment center would serve the city better, in the long-run, by testing for the abilities fire captains and lieutenants most need. Or maybe there are just a lot of firefighters well-qualified to do these jobs and a scant number of openings. "It seems like guys on both sides of the line feel like they've been cheated, like there just aren't enough positions to go around," says William Gould, the white captain. He supports Frank Ricci. But he can see what this fight looks like from the other side. If New Haven could start over, maybe it could also admit outright that it has more deserving firefighters than it has rewards. The city could come up with a measure for who is qualified for the promotions, rather than who is somehow best. And then it could choose from that pool by lottery. That might not exactly be fair, either. But it would recognize that sometimes there may be no such thing.