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Hey Blogfans. I'm serious about getting work done these days, so I'll have to just say here: IOU One (1) post on race. Listening to some old BBC news today about an Indian company than bought Jaguar trying to buy a controlling interest in a line of hotels, and told in essence that they don't want their kind buying the hotel (kind of), and a rehash of some Jaguar dealers saying Americans weren't ready to buy luxury cars from Indians brought to my attention again the contradictions of modern race relations. The BBC commentator said that he'd hesitate to call the rebuffs "racist", he thinks they were just "poorly worded." It's this kind of thing that puts the calls about racism in the public sphere over many things that evoke public backlash or queasiness in perspective: they're debatable, but they draw attention away from the real racism of the present day, Institutional Racism. After all, the argument against Indian ownership was basically, "It's not about race, it's because people don't associate Indians with luxury or comfortable hotels. It's not our fault, it's just the perception." Yet to give in a to a perception just because it's tradition is exactly what perpetuates institutional racism -- and it doesn't have to be because you're racist, but just going with the flow, allowing what has historically happened to continue happening. But when the history it comes from is racism, you're being racist when you don't fight it. Not in the "I hate Brown Folks Personally" way of yore, but in the very pertinent and real and omnipresent way of saying "Well, we should let the status quo work itself out," when the status quo itself is based on years of discrimination. Not taking responsibility for that (and changing it) is itself (institutional) racism, is self-deluding, and is wrong.

Ok, this is almost a real post, but I'll probably want to clean it up. Watch this space (or don't, since I'm not sure when I'll get around to it). Cheers.

J

More on Ricci v. DeStefano from another forum

J-Friend EssEee said:

Jumping in late here... Has it been demonstrated in any valid way that the test was, in fact, flawed. Or is it merely a case of the results pointing to the possibility of a flawed test?
From my limited knowledge, it appears that the city said "This is the criteria used to determine promotions." and when the results came back and too many people of ... Read Morethe "wrong" race met the criteria, the criteria were changed. Without demonstration that the original criteria were flawed, it seems to be flagrantly a matter of discrimination.

J responds:
(as often happens, I don't get to my point until I ramble through a lot of "thinking out loud." As I occasionally do, I'm reposting the conclusion at the top because I think it contains a brief summary of all the words I wander through to get there. So feel free to read the whole thing, but here's the gist:)
So I argue: can one have a test that discriminates along race but is not itself discrimination or resulting from the structures of racism? I think this is unlikely. And if it is possible to use an alternative but equally or more valid test of ability that doesn't divide along race, how does that compare to the original? If the original is fair does that make the alternative "hyper-fair"? Or if the alternative is equally or more valid, does that mean the original is discriminatory? I think this is an important question to ask. Some argue that looking at the result they got in terms of race and saying you will re-test is discriminatory in itself. I argue that looking at the result and not re-assessing the evaluation to see if there's a better way to do it is racist, because if there's a better way to do it that doesn't end up segregating racially, that seems to de facto mean the original way is flawed. I mean, they can't both be true, can they? If one test yields more racially balanced results, and is a reasonable test of ability, but another test yields racially segregatory results, can this other test also be considered a reasonable test? How can two reasonable tests give different results? And if two reasonable tests do give different results but one favors racial equality, is it racist to demand that test be used (or at least such industry-common alternatives tried)? How do we analyze a situation like this (which seems likely to be what would happen)?

I will say that I'm somewhat rather swayed that those who prepped for the test extensively are owed some kind of recompense, because institutional racism is not their fault, but I don't know that they're owed a promotion. (And if I were ruling the world, the way they'd get recompense would likely be cuts in everyone's salary to pay for a proportional compensation for them, since it is everyone's responsibility in society to agitate for racial equality, though of course in real life, this would just make everyone hate everyone... though that seems to be likely in this case anyway.)

Well I'd challenge you on that EssEee, though I'm fairly sure you'll still disagree. The criteria for discrimination is "disparate impacts", that is, if different races are affected differently, there's a prima facie reason (to my understanding) for assuming discrimination. This was instituted such that people couldn't (consciously or unconsciously) ... Read Morediscriminate after Jim Crow was struck down by trying to tailor tests towards one race. It seems fairly clear, in this case, it *was* tailored towards whites, completely inadvertently, given that it tested (seemingly) esoteric knowledge of the characteristics of fire over practical experience, and the whites were MUCH more likely to be nth generation firefighters, and therefore to possess (or have easy access to) such knowledge.

To me the question I suppose is what do you count as discrimination? The biggest problem this day & age is institutional racism, imho, which is racism inherent in the structures of the society we've built today. You don't have 300+ years of de jure racism without a lot of de facto racism becoming part of the culture and its institutions. To me, there's a good argument for looking at all institutions critically from the standpoint of race & sex, because they were founded on assumptions of inequality, and getting rid of the *rules* of inequality doesn't ... Read Morechange that the institution was founded in it and therefore is likely to have understructures of power favoring one race or sex. In any case, the argument is that if a test affects one race completely differently than another (as seems the case here), it's likely there's a discriminatory factor. After all, there are 3 Occam's Razor type conclusions to be drawn: 1) The white firefighters are inherently more qualified (as measured by the test); 2) they worked harder as a group than Latinos and Blacks; 3) the test (likely unintentionally) exploited factors that aligned racially. The fourth, that it's random chance, seems unlikely given the numbers.

And one has to admit, I think, it's quite possible that the test did discriminate based on racially-aligned factors that are non-obvious . (I guess one of a more libertarian ilk might argue that's tough crap, that society is only responsible for intentional racism and inadvertently racially-aligned factors are not germane, but I could go on for two... Read More pages on why I think that's completely faulty reasoning.)
I guess I'd pose a couple questions on this basis: 1) Is it possible for the city to want to redo the test, purely based on race, because the test *in its results* seemingly discriminated? Aren't results that break too-neatly on racial lines automatically suspect, whatever the cause? In effect, is wanting to redo it simply because not too many of the "wrong" race met the criteria but because only ONE of the non-white races qualified? After all, that's the issue -it's not that the wrong people won, it's that one race all but COMPLETELY dominated promotions. 2) If it is automatically racist to want to redo it just because the test broke down (I would bet) non-randomly along the lines of race? (That is, I bet the chances of getting these results at random from a fair test is very low, so one must assume systematically lower qualifications among the blacks and hispanics or assume the test is inherently unfair.) If this is true, that it is racist to redo the test simply because a not representative enough x-section was promoted, in otherwise, racism can happen in advancement of a fair goal (equality in promotion), then it seems to me it must be equally true that it is inadvertent racism to presume a test is fair and that blacks and hispanics were systematically under-qualified. That is, if it's racist in the pursuit of diversity to re-do a test that, unintentionally or not, strictly divivded on racial lines, then to me it is equally (if not more) tenable to argue that a test that strictly divides along racial lines is de facto racist, unless it can be shown that there's not a different, equally or more valid way to conduct the test that does not break down on racial lines.

In the end, that is my understanding from Richard Thompson Ford of the law -- if there is a way to do it that does not break down racially that is equally or more valid, then it is discriminatory to use the method that does break down along racial lines, even if unintentionally. To me, there are two burdens of proof, a different one for each side: for those who want to redo the test, that the test is unfair in some way; for those that want to follow the results, to prove that the reason it broke down racial lines is skill-related. If both sides fail to prove their contention, I'd argue that the compelling interest of society in having its services reflect its own diversity carries the day. All this is to say, I would (I have to admit, at least now that I've considered all the factors) have to say it would be equally racist if only blacks passed and the test wasn't reconsidered. I mean, think of that -- would you assume the test was fair if only blacks and hispanics succeeded in promotions and only one, or no, white people succeeded? I would think that's suspicious on its face as well.

In the end, I think it is simply wishful thinking to equate "discriminating" in order to achieve racial balance the same as doing so to achieve segregation. One cannot correct a society that was biased along color lines through a color blind approach. You cannot expect all social starting points to be equal while Jim Crow (legal segregation) is still within easily living memory. MLK, often quoted for his "dream" of all living in harmony, did not seem to believe this would be achieved through colorblindness:

Many of the ugly pages of American history have been obscured and forgotten. A society is always eager to cover misdeeds with a cloak of forgetfulness, but no society can fully repress an ugly past when the ravages persist into the present. America owes a debt of justice which it has only begun to pay. If it loses the will to finish or slackens in its determination, history will recall its crimes and the country that would be great will lack the most indispensable element of greatness — justice.
o Where Do We Go from Here : Chaos or Community? (1967), p. 109

Can it be this "debt of justice" can be paid simply by ignoring race? That doesn't sound like in any way paying a debt to me. He further said:

If a city has a 30% Negro population, then it is logical to assume that Negroes should have at least 30% of the jobs in any particular company, and jobs in all categories rather than only in menial areas.
o from a 1968 Playboy magazine interview

This is certainly an "argument from authority," but I use it because MLK is so often used to argue for a race-blind society. Can anyone doubt from those two quotes alone that he meant for an equal society to come about by not challenging any institution that has, say, a 30% black population but not 30% blacks at all levels? That he would say the solution to that is not action and re-examination of the method of determining it, but simply, I don't know, hard work and better luck next time?

have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends.

This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God's children. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood.

So I argue: can one have a test that discriminates along race but is not itself discrimination or resulting from the structures of racism? I think this is unlikely. And if it is possible to use an alternative but equally or more valid test of ability that doesn't divide along race, how does that compare to the original? If the original is fair does that make the alternative "hyper-fair"? Or if the alternative is equally or more valid, does that mean the original is discriminatory? I think this is an important question to ask. Some argue that looking at the result they got in terms of race and saying you will re-test is discriminatory in itself. I argue that looking at the result and not re-assessing the evaluation to see if there's a better way to do it is racist, because if there's a better way to do it that doesn't end up segregating racially, that seems to de facto mean the original way is flawed. I mean, they can't both be true, can they? If one test yields more racially balanced results, and is a reasonable test of ability, but another test yields racially segregatory results, can this other test also be considered a reasonable test? How can two reasonable tests give different results? And if two reasonable tests do give different results but one favors racial equality, is it racist to demand that test be used (or at least such industry-common alternatives tried)? How do we analyze a situation like this (which seems likely to be what would happen)?

I will say that I'm somewhat rather swayed that those who prepped for the test extensively are owed some kind of recompense, because institutional racism is not their fault, but I don't know that they're owed a promotion. (And if I were ruling the world, the way they'd get recompense would likely be cuts in everyone's salary to pay for a proportional compensation for them, since it is everyone's responsibility in society to agitate for racial equality, though of course in real life, this would just make everyone hate everyone... though that seems to be likely in this case anyway.)

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.

D & J Discuss Firefighting Institutional Racism

Daktari (from this post's comments):

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.

White Like Him

Read this great post on Buzzflash by the appropriately named Tim Wise.

A BUZZFLASH GUEST CONTRIBUTION
by Tim Wise

For those who still can’t grasp the concept of white privilege, or who are constantly looking for some easy-to-understand examples of it, perhaps this list will help.

White privilege is when you can get pregnant at seventeen like Bristol Palin and everyone is quick to insist that your life and that of your family is a personal matter, and that no one has a right to judge you or your parents, because "every family has challenges," even as black and Latino families with similar "challenges" are regularly typified as irresponsible, pathological and arbiters of social decay.

White privilege is when you can call yourself a "fuckin’ redneck," like Bristol Palin’s boyfriend does, and talk about how if anyone messes with you, you'll "kick their fuckin' ass," and talk about how you like to "shoot shit" for fun, and still be viewed as a responsible, all-American boy (and a great son-in-law to be) rather than a thug.

White privilege is when you can attend four different colleges in six years like Sarah Palin did (one of which you basically failed out of, then returned to after making up some coursework at a community college), and no one questions your intelligence or commitment to achievement, whereas a person of color who did this would be viewed as unfit for college, and probably someone who only got in in the first place because of affirmative action.

White privilege is when you can claim that being mayor of a town smaller than most medium-sized colleges, and then Governor of a state with about the same number of people as the lower fifth of the island of Manhattan, makes you ready to potentially be president, and people don’t all piss on themselves with laughter, while being a black U.S. Senator, two-term state Senator, and constitutional law scholar, means you’re "untested"...

You really should read the rest.

Readers, especially my white readers, should perhaps note that White Privelege is not, in itself, an accusation or indictment. I learned in some valuable diversity seminars (seriously, they were good) at my old job that it takes quite a bit of work for a group of people of different races and backgrounds to come to believe and understand simultaneously that: a) there is still racism, which has likely negatively affected minorities in the group (including women -- "minorities" in this sense means groups whose sociopolitical power is "minor to" their proportion in the population), and b) it is not personally accusatory for it to be said or believed that racism is still at work within an institution. Indeed, there's a phrase for it: institutional racism.

As with White Privelege, the point is not that White People Are Bad or some similarly simplistic message ("This Is Your Fault"), but rather that the system we've inherited, incontrovertibly, was built on a racist heritage. White people, normatively speaking (being that they are normatively better off) are better off in no small part because of past discrimination. I think of it this way, in part: if my grandfather stole your grandfather blind, and was able to raise my father in a better environment and send him to a better school (or was able to help found, support and build a better school), then I have benefitted from the ill actions of my grandfather, and your family has been hurt by it. Property law certainly can be interpreted to mean that I owe you what was stolen, since I have gained from it -- whether or not it was my fault, my success is in at least some part due to an ill-gotten heritage -- but more important than property law is, I believe, an obligation to help those who are worse off, especially if the source of their difficulties is in some part tied to the source of my advantages.

The point of all this is that responsibility doesn't start, or end, at guilt, but rather that fighting racism doesn't simply mean not being actively racist oneself, but also fighting the vestiges and inequalities today that it generated. The fact that one is Priveleged does not mean one is Guilty, but I would argue it does morally impel one to Responsible Action to work to remedy the source of such privelege, regardless of personal, individual responsibility for that source. Some people (achem, i.e., libertarians) ignore or disagree with these view to responsibility, as apparently there is a statute of limitations such that if I can rip you off and get away with it, once I can pass it to my kids, it's not their problem and you or your kids don't deserve anything despite the wrong against you (see Dick 2, 2 Hank 4, and Hank 5 -- that is, Shakespeare's Richard II, Henry IV Part 2, and Henry V).

Anyway. Sarah Palin. More bad stuff. White privelege. And did you freaking hear about the rape kits -- Palin's city of Wasilla's former policy of charging raped women for their rape kits? Even the conservative National Review Online sees this as pretty egregious, and though it argues that there's no evidence Palin knew about it, they do concede that she had a responsbility as mayor to have known what her Police Chief was doing and put a stop to it. It is interesting that the NRO reporter engages in what can only be called moral relativism, in that he tries to excuse the situation by saying: other places have charged for rape kits, and (more non sequitirly) Obama voted "present" on an importnat bill on child abuse. (I was inclined to examine and defeat that last claim by the NRO, but for now it suffices to say that this is irrelevant as to the question the article is nominally about -- Palin, Wasilla, and rape kits -- and that I somehow doubt that the implied characterization of Obama's vote is wholly accurate or impartial.)

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...

The Strangest Place

For racism, the last place I'd think to look would be PRI/BBC's The World. I'll get links up here to the specific stories in a couple days, but one was on aid from foreign countries for US and Hurricane Katrina. I guess in this case, "racist" isn't the right word, but rather perhaps Eurocentric or extremely BIASED towards junk propaganda, but in any case: talking about 3rd world countries donating money and resources back TO the US (since they are usually aid receivers), the host mentioned poor countries like Bangladesh giving some money to the US out of good will, and solidarity, and other feelings of bonhomie. But for countries we're politically unhappy with, in this case, Venezuela and Cuba, they said there may have been ulterior motives involved. Some expert they brought in gave offensive conjecture about Fidel Castro and his Foreign Secretary chomping on their cigars and laughing at the US because of the diplomatic conundrum Castro's offer of 1500 doctors put the Bush Admin in. (In case you're inclined to agree: Cuba's health system is so good, the hardly-communist World Bank has sent reps there to study how they dealt with AIDS, and the even-less-communist US itself sends, or at least sent until Bush II Term 2, medical school students to Cuba to observe their system frequently. In fact, crazy-craze John Bolton's allegations of bio-weapons in Cuba have almost universally been debunked, observing that international observers to a person say that what he claimed were weapons were indeed simply the advanced pharmaceutical facilities they said it was.) (Nota bene: Further, we turned down the doctors, presumably for political reasons, since Cuban doctors have been sent abroad many times and are, as I implied, well respected internationally for their prowess.) (Links to come, in spades.) Venezuelan President Hugo Chavez, against whom Crazy-Craze Pat Robertson recently issued a fatwa, offered to send oil (which I think we eventually accepted), and The World reported that he would simply love to curry favor from the US. (Not that this is not true, but it is insulting when pretending that this realpolitik somehow differs from Bangladesh or other countries' -- that is, as if those others gave from the heart and not out of desire for goodwill FROM the US into the future, whereas Chavez is just a lowlife giver hoping something in return.) Since our government has repeatedly charged him with being anti-democratic, when he's been democratically elected 3 TIMES (once a pleibiscite at our insistence eventually declared clean by international observers including ex-Prez Jimmy Carter's group) and after we lukewarmly SUPPORTED a coup against him that was clearly illegal and unconstitutional and what's more, undesired by most of the population i.e. the POOR PEOPLE.

The second example of The World's craziness was yesterday's story of mad defrauding of Iraq by some of its former pols, specifically, some $800 million from the Defense Ministry (if I remember correctly). The host asked if this was a unique case, or just like general "graft in the 3rd World." IN THE 3RD WORLD?!!????? aaaaaaaaaaaaaahhhhhhhhhhhh. Beyond the fact that graft and greed aplenty occurs in the 1st World, they wondered at the size of this debacle, with NARY A MENTION OF THE LARGEST DEFRAUDINGS OF ALL TIME, WHICH WERE EXPOSED A SCANT FEW YEARS AGO -- they were in the private sector, but with publicly traded companies -- as much a violation of the people's rights as any government that was INSTALLED BY US undemocratically. (The Iraqi defrauding took place during L. Paul Bremer's late and unlamented Interim Coalition Authority and the Iraqis they appointed to lead the country -- no mention of it occurring on our watch, though!) To add heinous insult to subtle injury, the reporter said that much of the money ended up being defrauded through no-bid contracts. But surely, says the host, no-bid contracts have some pedigree as legitimate, after all, they were extensively used by the Coalition Authority to award contracts to Halliburton and others. AAAAAAHHHHHHHHHHHH. This same Halliburton that has been widely reported to HAVE SWINDLED THE US GOVERNMENT, THE AMERICAN PEOPLE, AND OUR TROOPS IN THE FIELD??!!!!???? This host must be: a) an incredibly biased ideologue (medialogue?) staying on message, b) really really dumb, and/or really, really uniformed, or c) tryiing to be weakly ironic by pointing out another case where fraud is KNOWN to have happened (and it seems to me likely it was on a similar scale) and hoping his guest would point it out so that his ass-covering "neutral" self wouldn't have to. It sounded to me, however, most like A or B. Ahh.

Just cuz the short memory of the American people has slipped past the numerous reports of Halliburton's malfeasance, DOESN'T MEAN IT NEVER HAPPENED. Ah P.S. Ahhhhhhhh.

Speaking of ideologues, I know that I've thought that David Brooks has lost his mind, but wow... Meanwhile, Tucker Carlson reportedly (reportedly since I can't find the primary source) said of the President's speech: "[Bush's] line that 'racism causes poverty,' and that federal spending is the solution to that" is "not conservative" and "to hear a purportedly conservative President say that is unreal." Racism of course is not the cause of modern poverty, at least, not in its blatant form, but rather in institutional racism, which some don't seem to believe, or which Tucker Carlson (and, sadly his liberal guests) don't appear to have heard of. Chuck D, Rachel Maddow (two Unfiltered alumni!) both were unable to answer his questions about how a predominately black city, with a black mayor and predominately black first responding force, and a governor elected with a lot of black votes, could possibly be racist. (Apparently he's never read Norm Stamper*.)

Sigh.

I hate it when people who agree with me, and, effectively, represent my views on the national media just don't seem well-informed on how things actually work (or at least are believed to actually work by us reality-based lefties).

*From a story about Norm Stamper, former Seattle Police chief:

"His voice gained credence on the San Diego force as a series of enlightened chiefs came to power that, with Stamper's help, made the department nationally famous. One, Bill Kolender, called for an investigation of racism in a troubled graveyard patrol squad. He assigned Stamper, then a captain, to the task. The year was 1976. What he found, as described in Breaking Rank, was shocking. Thirty out of 31 officers admitted to using racial epithets and demeaning terms. The use of the N-word was just the start. Officers said they radioed "no human involved" for a situation involving blacks, or used the code for an injured animal. One cop refused to give mouth-to-mouth resuscitation to a black woman. Another sang, "Mammy's little baby loves shortnin', shortnin',"to a suspect in the back seat of his patrol car. The only black officer on the squad fell into a weeping jag when he admitted that he went along with it all."

From the The Seattle Weekly; see also Mr. Stamper on CSPAN's booknotes.

Once again, Ruth Bader Ginsberg proves to be the Voice of the J Continuum

God love her. Though I still can't see how RBG and Scalia are supposedly personal friends; I guess they don't let politics get in the way, which in a way is admirable, and another way, kind of... blergh. I guess it's mostly admirable, but it's weird to me: "You have a fundamentally different view of justice, rights, appropriate behavior, and the roll of state than I do, to the point that where I see oppression, you see correctness, where I see sound reasoning you see soft-headedness, and where you see correctness, I see incorrect or wistful interpretation, and continuing of an oppressive system." I guess it's good -- and much needed -- to have friendship across political lines, but when it's someone like Scalia... It'd just be weird hanging with someone who not only differs with you on, say, whether or not the state should put people to death and what constitutes torture, but has and has used his position (quite correctly) to advance his views. (Like I say, it's of course correct for Scalia to do so, it just adds a creepy element to political disagreements, when you each have the power to make your stance part of the "correct" interpretation of the laws of the land.)

Anyway, Emily Bazelon returns to my good graces with this in her recent post on the recent Ricci decision:

Why all the competitive storytelling? The Supreme Court's ruling today will apply whenever cities try to base promotions (or, by extension, hirings) on a procedure that turns out to eliminate most or all of the minority candidates. This is called disparate impact, and Congress wrote it into Title VII in 1991. New Haven's test for promoting firefighters had such a disparate impact—that's one thing all the justices do agree on. The question is, What happens next? Can the city say, hey, we think there's another better way to make these promotions that won't leave us with a fire department led only or mostly by white people; now let us go figure that out? Until today, the answer seemed to be yes. Now the answer is clearly no. If a city in this position sees a disparate impact problem coming toward it like a right, it can only step out of the way if it has, as Linda explains, a "strong basis in evidence" for thinking that the test can't be defended—in other words, that the test it used is more job-related, and a better measure of performances, than the other measures of assessment it didn't use.

The city can't throw out its test even though the results allow for the promotions of no black firefighters because it would be making such a decision based on race or, as Kennedy writes, because "the City rejected the test results because the higher scoring candidates were white." He is treating the decision to throw out the test and start over as an absolute racial preference. Here is where the bad facts come in: Frank Ricci and the other white (and one Hispanic) firefighters who sued did what they were supposed to do. They studied for the test the city offered, and they scored the highest. But they didn't get the promotions they felt entitled to because no black firefighters scored as well. Justice Ginsburg points out that Ricci and his fellow plaintiffs "had no vested right to promotion." She's right. But to the majority, that doesn't really matter, because the majority focuses only on this test and this round of promotions in New Haven. And when you frame the case that way, Frank Ricci and his dashed hopes take up the whole screen. At which point, you think about justice for them and only them.

Ginsburg widens the lens. She goes back to the early 1970s, when African-Americans and Hispanics made up 30 percent of New Haven's population and only 3.6 of the city's 502 firefighters. This is when the black firefighters in New Haven started suing. Their efforts yielded much better representation among the rank-and-file in the department. But as Ginsburg says, not among the fire department's leadership: "The senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Departments' 21 fire captains is African American." (More from me about the history of New Haven's fire department here.) New Haven threw out the test results because it was trying to rectify that imbalance. To Ginsburg, this should surely be permissible—a city trying voluntarily to comply with Congress' 1991 mandate to address disparate impact.

And then, Ginsburg points out, the majority raises the bar for what New Haven must show to justify throwing out these test results. Kennedy dismisses as "stray facts" in the record the doubts raised about how the test was weighted—60 percent written, 40 percent oral—and the city's proposal to replace the test with an assessment center, which are designed to evaluate the particular skills needed for a job. But Ginsburg sees that the 60-40 weighting simply reflects the demands of the union—the same union that filed its own suit against the city in support of Frank Ricci. And she sees the merit of the assessment centers as an alternative measure. "Relying heavily on written tests to select fire officers is a questionable practice, to say the least," she writes. "Successful fire officers, the City's description of the position makes clear, must have the '[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.' These qualities are not well measured by written tests." No wonder, in Ginsburg's view, a 1996 study found that two-thirds of the cities surveyed were using assessment centers in making promotion decisions.

They make a good point that I've been (inadvertently) dancing around with my fellow discussants in other fora: the (reasonable) sympathy evinced for Ricci and his fellow white (and one hispanic) firefighters in this case is in conflict with the institutional history and less acute but nonetheless real plight of black firefighters in New Haven. And I would differ with my friend EssEee (Sean) who sees institutional racism as less of a problem than institutional discrimination against poverty; I guess part of my counterexample would be the various problems women have with equality of management positions, salary, and promotion (see i.e. Lilly Ledbetter), where the problems of disparity and inequality for women is, if not completely distinct from poverty, relatively so.

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.

Daktari & J continued: Ricci v. DeStefano and I get errors when I try to post this in comments

Previously on this same Bat-Channel, D said:

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 responded, here in a post body because his comments post refused to work:

Don't know that I entirely misunderstood you. I'm only half awake, but I don't think this particular policy constitutes a contract with its employees. I'm not sure how often supervisory positions come up, but seemingly not very. Besides which, promotions are (I would think) discretionary; sort of like tenure -- there doesn't have to be a particularly great reason to deny someone tenure. It can't be a purely discriminatory one, but it can be as simple as "you don't fit where we thought we were going when we hired you/when we told you that typically people with your track record of crazy hard work get tenure yesterday before the review". I mean, especially if this test is unrelated to the skills needed for the position, which is a quite arguable position (and one of the positions the black firefighters have taken). Clearly, it is not a "contract" in any absolute sense, as no one would say they were required to promote them if the deal were "we draw straws and whoever gets the longest straw gets promoted." If you then (rightly) decided that pure chance was a horrible reason to promote someone, I don't think you are breaching contract to refuse. (It may be "unfair" but again it depends on your perspective; in this case, it would be "unfair" to the supervisees and the city to have firefighters chosen by raffle when a better method could be devised to gauge quality.) Further, if the test does depend on white privilege, it could therefore be called discriminatory even if it were fair in the way I outlined earlier, that is, given sufficient backgrounding in the facts and culture, you could excel. Of course, that's the further problem -- the "contract" was that the top scorers absolutely get the promotions, not all those who passed any arbitrary cut-off. Most would agree that a written test cannot be the most effective way to determine a manager and firefighting supervisor. The agreement was for the written test to be everything -- and for having the highest relative scores being as important as high absolute scores. If the scores had been 99.9, 99.8, 99.7, 99.6, etc. and those first several were white, under the agreement as it was, they still would have to be the ones promoted -- even if those differences were within the margin of error and any number of other factors (20 years on the force vs. a well-testing greenhorn to make an extreme example) said that Mr. or Mrs. 99.2 should get promoted.

The problem is, you're of course right that if the test is "fair" then the employer shouldn't change midstream just because the results weren't what they wanted. But the law defines unfair as "ending up with a result affecting minorities differently when an alternative would work as well or better." That is, unfair for that exact circumstance, i.e. the test the white firefighters did better on is by default unfair if there is a difference in race and it can be shown that better practices could've been used for the test. Hence the tough spot the city is in -- the black firefighters may've had the law on their side had the city gone with the test because discriminatory results apparently automatically raise the possibility if not plausibility of a discriminatory test.

The problem to me is not whether or not you can change requirements mid-stream; if tomorrow the test were found to be a horrible predictor of skill, you aren't going to risk firefighters & civilians lives because of a tacit agreement with the test-takers. And if the test were obviously discriminatory, then the city would be within its rights you seem to be saying. The problem is, it's easy to (to me) to argue both sides, and no matter how you decide you may be "unfair" to one group. Fairness depends on where you stand, as does the test's discriminatory nature. In the end, the test is an attempt to make a qualitative process strictly quantitative, and that underlies the whole problem -- we can't reduce any of this to "facts" because almost every bit of it but the most basic elements are subject to interpretation.

More evidence for a pet theory of "Kids Today"

Language Log has a nice bit on the "kids today"/"decline of civilization" trope that consistently gets my goat. (Similar J posts can be found here and, less directly parallel, here.

J-fave & friend D has been on this trope recently, to my mild peevitude.

I'm not sure why this trope annoys me so much, other than perhaps because it seems like a so relativism-laden "my perspective is the objectively correct one" type of attitude. While it can be a source of commiseration, it's also sometimes sallied forth like a prophetic warning. And it is not, of course, that things can't get worse or perhaps haven't gotten worse, but I think it's intellectually incomplete to simply say "Things/Kids/Civilization Is Going To Hell"; Jon Stewart said one of the wisest things I've heard in popular discourse years ago, pointing out to (either Bernard Goldberg or Rick Santorum) that for all the "negative" directions in culture -- violence on TV, swearing, etc. etc. -- it is simply *not OK* to be a racist. You cannot be openly, blatantly racist and a major mainstream public figure--there are certain things that are not OK to say, that were 20, 40, 60 years ago (to say nothing of the sainted times of our blessed and perfect in every way Mary Poppins-like Founding Fathers); there is no de jure, legal segregation, Jim Crow, while still with us in legacy, is not with us in poll taxes or the nearly 5,000 lynchings and racially-motivated murders between 1865 and 1965. As I said on D's page,

"The fact that they used *different* words to curse at people 100 years ago doesn't mean they were more *polite* words. And certainly no one has been caned on the floor of the Senate in a while. Nor has their been a fucking duel between congressmen. Nor are racial epithets, many of which used to be fine in every day speech, acceptable any longer, a huge step FORWARD in my mind. We are, if anything, more civil -- no one has called me "boy" because I was black in my life. I'd say that's plus 1,000,000 points; I'll deduct 100 for inappropriate [placement of the word] "shit" [in an ad that D saw].

The theory I posed years ago, and feel like is increasingly vindicated, is that when people complain of the conditions of youth, civilization, etc. today, they aren't comparing civilization today vs. civilization before, they're comparing their adult perception of civilization vs. their childhood perception of civilization. Of COURSE things were simpler when you were a kid -- to you! Because -- YOU. WERE. A. KID. Don't confuse this with the world actually being materially simpler or different. For example, I believe (though am not going to look for the stats to show) that the "Roaring 20s" had the highest murder rate in US history; there has certainly always been sex out of wedlock, VDs, war, incivility, swearing, porn, violence, etc. This is not to say the rates of all these things have been constant--they clearly haven't--but nor have they been linearly increasing. Some things, like swearing, one has to look at the language used and what was considered indecent when, but you can see people being chided for salty language in Shakespeare's plays and no doubt before that; we didn't invent naughty words nor their overuse, just because *different* words are naughty now. Kids have always, always been seen as not respectful enough to their parents it seems, so to establish this as a fact and not a cranky complaint takes far more effort than any person who's ever said "Kids these days" in my earshot. And like I mentioned, open racism has simply become verboten--surely a nearly unalloyed improvement, if one that is vastly insufficient compared to actually coming to an end of racism (especially its institutional manifestation). Long story short, some things may be worse, others better, but 99.9999 times out of 100, I'll bet you it's because the world SEEMED simpler when you were a kid because you were a freaking kid; you hadn't been exposed to (if you were lucky) the worst that humankind can muster, or the full wages of every day disdain, incivility, and a lack of an regular, caring space (i.e. parents/family). Whether you were poor and lived simply or had a life of quiet elegance in Greenwich, you hadn't seen very much of the world, had you? So let's be careful about comparing how the world seemed to you then and how it seems now; making any grand pronouncements thereof in reality should be a grand research undertaking (UNLESS, you just want to be cranky -- which is completely fine, I like to be sometimes myself, but don't confuse it with having an accurate bead on the world).

Anyway, the Language Log entry as well as the customarily excellent LL comment area is well worth reading on the topic of Kids Today.