New Haven's Firefighters: Race, White firefighters, and civil rights, Part the Nth

A really fantastic piece, or seemingly from my quick readthrough, by Richard Thompson Ford again, Stanford scholar and previously linked-to commentator on the "New Haven Firefighter Case" of Ricci v. DeStefano.

Ford analyzes how the SCOTUS' finding for the white firefighters (and one Hispanic firefighter) in this promotion case overturns years of civil rights precedent, while going with more recent precedents of treating any attempt at addressing civil rights as creating their own racial (or sexual, in the case of homosexuality) preferences, "reverse discrimination" or "special privileges."

There are two interesting points here (well, many more than that, but two I will make right now.) One is that recent discussions with various J-friends have, unhappily, split pretty clearly along racial lines (though not with any racial overtext, that is, whether or not people agreed or disagreed with the SCOTUS decision fell quite racially within my very small subsample of my friends). BUT, the point of contention seemed to (mainly) fall into "Ricci et al. deserved to win because they played by the rules," that is, the test happened, and taking back what they'd "earned" by going along with the test as written would not be fair, regardless of the errors, biases, whatever of the test. (The "compromise" position found between J-fave D and J was that they were deserving of some recompense for the efforts they put into preparing for the test, even if they were not owed a promotion.) Essentially, as I discussed with J-Mom, it seemed to be a focus on the individual, individualism, and the rights of the individual not to be "harmed" for the good of the whole, or good of another group at least. (This is not at all how the J-friends phrased it, but my interpretation of their objections to my points of view). J-friend Sean felt that institutional racism was real, but of a lessor magnitude than perhaps I may think it was, a lessor magnitude than discrimination from poverty (which is hard, if not impossible, to parse, but suffice it to say I think institutional racism is a profound and not terribly diminished problem, something D seems to agree with to some degree.) Indeed, Sean argued (if I am restating it correctly) that essentially positive preferences for any group are essentially the same, such that discrimination "for" blacks was as bad as discrimination against them (and you can replace "black" with white or Hispanic or what have you here).

Thompson argues that this places many, many programs to address racial programs at risk, as in the end, they all hinge on treating one group differently than another or end up displacing some people who would otherwise have received a job, promotion, or college acceptance. (He uses the example of the 10% programs, where, for example, Texas admits the top 10% of students in their high school class, a supposedly "race-neutral" way of achieving the end of diversity and representation of minorities. As has been pointed out by others, this only works because Texas schools are segregated, thus, you get diverse representation because the top 10% of the class at predominantly black or Latino schools is itself predominantly black, so minorities get represented essentially because they are not integrated (or have lower relative average scores where they are more integrated). As Thompson says:

The university now admits any student in the top 10 percent of his or her public high-school class, and because so many of the public schools in Texas are racially segregated, this guarantees a racially diverse student body. Opponents of race-conscious affirmative action have pointed to this policy as an example of a viable, race-neutral alternative. But no one denies that the motivation for dropping the traditional admissions criteria in favor of the 10 percent plan is to achieve a better racial mix. Extending the logic of Ricci, this looks like impermissible race discrimination against the students who would have been admitted under the old criteria, just as dropping the firefighter promotion exam was impermissible race discrimination against the white firefighters who would have been promoted.

I think this poses a challenge to those who agree with the Ricci decision, unless they hold the very narrow stance that it is only because the test already happened that it was unfair discrimination. As Thompson points out, how would the case be (legally) different if, before the test, the city chose to use one test that they knew from previous data would tend to favor a more diverse mix (i.e. less whites and more minorities) rather than a test that would favor more whites. The intent there is almost exactly the same as throwing out the results for, as some of my friends posed it, "having too many white people". So if Ricci is unfairly discriminating against whites, using a test that you know would admit more minorities also should be, to be logically consistent.

The second point, which you may have forgotten I even supposedly had at this point, is that Ford reiterates that Ricci is a change in the status quo. As J-Mom AND the article by Bazelon I've prattled about here for the past week pointed out, the previous standard for a "discriminatory" test was just that the results were discriminatory. Governments typically used an "80% rule":

Title VII requires employers not just to inspect their hearts and not find any discriminatory intent, but to consider the racial impact of things like tests. And the EEOC, in interpreting this requirement, has given clear guidance about what impact counts as suspect:

"A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact."

The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law. (from Obsidian Wings)

Thus, the Court set aside the typical way things were done, where (as I have pointed out to J-friends), a test that has that much racial disparity is presumptively discriminatory, which seems to me a fine first pass at such things in a world of institutional discrimination, which I see as a very large on-going problem, contra J-friend EssEee.

As to the earlier point over the "fairness" to the individual, two other interesting bits:

Obsidian Wings: I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn't get his promotion, rather than what the law requires. This puzzled me.

And Walter Dellinger:

Given that no one had been promoted and no one had been denied promotion, it's very hard to see how the firefighters who brought suit were able to establish the very first element of a Title VII action: the existence of an "adverse employment action." In addition to satisfying the statute, it would have been far better for the process to judge New Haven actions after promotion decisions were actually made using whatever new standards the city chose to adopt. Completing the process would have shed light on the question of whether there were in fact equally good (or perhaps, better) criteria for determining promotions, and with far less racial disproportion... Which takes us to the fact that Justice Kennedy's opinion relies in part on a logically flawed, categorical error. He writes: "If an employer cannot rescore a test based on the candidates' race [citing the Title VII provision], then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates..." This is wrong. There is a very powerful difference between setting aside the results of a test based on what you learn from general racial statistics about those who took the test, on the one hand, and adjusting individual test scores on the basis of race, on the other... Using race to identify a problem has never before been considered problematic. It is what necessarily happens before institutions adopt the most widely accepted race-neutral actions, like using admissions criteria for every applicant that have less of a racial impact (for example, accepting students in the top 10 percent of their high-school class, which, in states like Texas, would produce a racially diverse student body). Contrary to Kennedy's assertion, deciding not to use test results should be far less problematic than "rescoring based on race." ...Here, all New Haven did was set aside the results of a test. It seems to me that test would have been very hard to defend, given the other questionable employment rules that surrounded it. New Haven counts the multiple-choice test as 60 percent of what determines promotion. That places twice the weight on test-taking as the median for firefighter promotions around the country. How can that unusually great a weight be justified? Kennedy says only that it was insisted upon by the union. Yep. That was two decades ago, when the union was dominated by the white firefighters. That so great a weight should necessarily be given to a multiple-choice test used to pick leaders out of a group of qualified firefighters is hard to see.

Going back to Ford to wrap up, he asks:

And why stop there? Even recruitment efforts aimed at underrepresented minorities are designed to increase the representation of those groups in work forces and entering classes with a limited number of openings. If these outreach efforts are successful, some minorities will necessarily displace some whites who would otherwise have been hired or admitted. Are those efforts discriminatory, too?

Among other things, I see this case as reflecting a problem of where many want us to be, especially in white America, and where we actually are (or at least how we perceive it in black America, to speak in broad generalities). If you think racism is a significant and real, persistent still-present problem, interventions of a certain size, from affirmative action to throwing out the New Haven test (which depending on how you look at it, was unfair to those who would have been promoted based on how the test was set up before hand by taking away what they'd earned, or would have been permissible because it threw out results based on the heretofore legally correct presumption that such skewed results were de facto racist) seem reasonable. If you think, know, or wish that racism has receded to the point where a lot less aggressive, race-blind, and minor intervention is all that's needed, it seems understandable to take it from Ricci's side.

Argh. Ok, I have a headache now (unrelated to the post, I think). Até...

Racial discrimination: Flip it and reverse it?

Excellent article by Richard Thompson Ford on Slate about the Supreme Court case Ricci v. DeStefano. You may have heard of this case as "the case of the New Haven Firefighters" or "the case of discriminating against whites":

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.