Showing posts with label Emily Bazelon. Show all posts
Showing posts with label Emily Bazelon. Show all posts

Thursday, June 25, 2009

Firefighting in black and white: More on Ricci v. DeStefano (aka the New Haven Firefighter Case)

This continues an earlier J-Continuum/Anekantavada discussion about the discrimination case before the Supreme Court of Ricci v. DeStefano. Again on Slate, an article does a pretty good job covering a lot of the relevant territory. Although I won't get into it now in any depth, a couple of facts together seem to me to point to why the city got it right in throwing out test results and denying promotions to everyone from that round of testing (i.e. mostly white, one Hispanic, and no Black promotions would have resulted):

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.

Thursday, May 28, 2009

More on Sotomayor

She's hardly a die-hard fan of the little guy.

In the linked Slate article by Emily Bazelon, Bazelon lays out how Sotomayor can be very convincing; in the cited case, she convinced a conservative and liberal judge, both of who started out opposed to her view, to switch sides and sign on to her decision in a case where "empathy" would lead you to believe one might side for the trucker in this case over the off-duty cop:
But what's striking, of course, is that she persuaded them to undo a verdict in a case that a jury saw as rife with police abuse of power. "You read this unanimous opinion, and it would seem to be the Republican judge who is driving this decision that she just signed on to. When in fact it was exactly the opposite," one observer said.

The other two judges had decided to rule to uphold a jury verdict and a $600,000 award for damages for a trucker who, whatever the merits of his suit (he was found not guilty of assault against the officer, who he got into an altercation with over a payphone, back in the 90s, where trucker Jocks claimed he explained he had an emergency with his truck broken down further up the highway and the cop refused to reliquish the payphone; fight ensues; the cop claims Jocks made no mention of an emergency and started a fight for the phone) seems to have been quite thoroughly punished for a crime it was ultimately determined he didn't commit:
fter his arrest, Jocks was held for 24 hours and ended up having to make 28 court appearances before he was found not guilty of felony assault. He spent $20,000 on legal fees, lost his truck driving job, and had to give up full custody of his daughter, who went to live with her mother, his ex-wife. That dire, black moment on the LIE truly cost him.


Frayster Joe_JP observes that this actually fits in with what we know of Obama, like his upholding of some Bush era atrocities:
Given the mixed feelings some have with recent actions by President Obama (e.g., preventive detention), this should not surprise. In fact, though he was specifically talking about his views on a "living Constitution," Obama in Audacity of Hope suggested his model is Justice Breyer. Someone Rachel Maddow recently suggested was more centrist than liberal (and at times tecnocrat), and various of his opinions can be used to back that up. But, the game has to be played, so she is tarred by the likely subjects when they should be quite happy she was chosen.


Dionne appears to have it quite right. And the last thing we need on the court in this J's opinion is another "law-and-order" type, inclined to "[use her] formidable skills on behalf of the strong in opposition to the weak". Where did you hear those words before? They were Obama's objection to the nomination of Supreme Court Chief Justice John Roberts. Although O may have been talking about minorities and plaintiffs in cases against large commercial interests, it's worth remembering that the police very much are often the ones who are the strong (such as in the trucker case where, when the off-duty cop had enough, he pulled his gun and put it to Jocks' head), and Sotomayor appeared to have used her formidable skills on his behalf.

Dionne: "And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left."