IANAL and I haven’t read the actual decision, but ISTM that the appeals court agreed with the city of New Haven that the test itself was arguably inherently biased in some way which was unintended. The evidence supporting that conclusion is that only white people passed the test.
Once that conclusion was reached, there seems little else that could be done except to rule that the test itself was unfair or improper and find a new test that doesn’t have the same problems.
Then I am not understanding this particular wording:
I don’t think that only white and hispanic people passing the test shows evidence of bias. Maybe those white people simply were more qualified for the job. Maybe the New Haven Fire Department just has some dumb black people in it. It doesn’t speak to the intelligence of all black people. I am certain that there are black firefighters across the country that could pass that test just fine. I’d actually like to see a sample test done, get 1000 black firefighters from across the country and see how many can pass the test.
But then again I am having a hard time imagining how it is possible that a multiple choice test about the Fire Department can be racially biased.
Sotomayor had nothing to do with the decision in the case. She was on a panel that heard the appeal, and was only to judge that the decision followed the law. All three judges that heard the appeal agreed that the judge who heard the case followed the law.
The ironic thing about this case is that those who attack her are suggesting that she should have disregarded the law and felt empathy for the defendants by overturning the decision.
No. You cannot discriminate on the basis of race thus intentional discrimination against non-minorities will be viewed with the same “strict scrutiny” as discrimination against minorities.
For example, Richmond v. J.A. Croson, Co. (1989) the Supreme Court struck down Richmond, Virginia’s minority contracting program as unconstitutional. (the program favored minorities in assigning city construction contracts) In 1995, in Adarand Constructors v. Pena, the Supreme Court applied the same standard of review, the strict scrutiny standard, to a federal procurement program and held that such a program established to increase the participation of minorities and women must be justified by a compelling state interest and be narrowly tailored to further that interest.
In Gratz v. Bollinger, the Supreme Court found that minority status could not be a virtually determinate factor for college admissions (plaintiff was a white student rejected from Univ of Michigan). However, Gratz v. Bollinger, the Supreme Court found minority status could be a consideration in admissions.
Quotas have been unconstitutional since Regents of California v. Bakke, in 1978
It is even doubtful to say it was her decision alone.
That is what the supreme court will decide soon, IMHO as soon as all schools in all neighborhoods of the USA are funded and managed properly then I would agree that the law is unjust. (And education is only **one **aspect of it, the law also covers other underhanded tactics that employers use to get the “correct” kind of employees.)
It all seems very ‘Tyranny of low expectations.’ to me. It seems far far far more racist to me to say that the people failed because they were black. Yes, the school system is failing minorities. But at the same time we educate people so that they will be more competent. If an institutional failure has failed to make a person competent, that doesn’t change the fact that they are not competent.
That was just a side comment. Whenever you hear people start barking about how “the law says you can discriminate against white men” the next thing out of their mouth is “quota” so I thought I’d head it off at the pass.
There’s a mistake in my post though. The case which said that minority status could be one consideration, was Grutter v. Bollinger (2003, also involved the University of Michigan, this time the law school).
That is possible only by ignoring that quotas are also illegal, the focus of the law is to put employers on the notice that some hiring practices are made in an attempt to hide discrimination.
It’s not that no black or Hispanic fireman passed the test, right? They just didn’t score the highest. IOW, isn’t it possible that this is simply a reasonable outcome, given the size of the testing population and the number of positions? It’s not as if every black person failed miserably and every white guy aced it; not sure why this is necessarily an instance of disparate impact. Did all the racial groups produce a bell curve result? Are some of the groups so small in their representation that it’s silly on its face to assume a bias?
I would love for an objective stat wonk to dig into this and either confirm or rebut the notion that this outcome could only reasonably be interpreted as showing an unintended bias. I realize the statistical “conclusion” can only have so much precision–e.g., “if we can reasonably assume x, y, and z, then we can be 85% confident that this outcome is not the result of an inherent bias,” or something like that. But my point (in advance, no extra charge) is that if we set the threshold at ZERO possibility of there being any unintended bias, well, sheesh. Let’s trash every test before we even give it.
But Frank Ricci who put considerable time and effort into passing this exam doesn’t get the promotion because he’s white. That is relevant to this specific case. Because a black man couldn’t get into the top scoring position, he is being held back from it through no fault of his own. That is blatant anti-white discrimination. He is being held back, losing the considerable expense of time and money that he put into passing that exam in order to get that job, that he worked very hard for within the rules as they were set down, and now he can’t have that job because of the inability of others to compete.
Please explain to me how that is not anti-white discrimination?
The answer would be that Ricci enjoyed the benefit of a test that provided an unintended advantage to people with his background. I don’t buy that here, just saying.
The struggle around this ruling is that there is an underlying fals assumption. The underlying assumption is that different populations are not differently enabled. This is incorrect.
Black and white populations have never performed equally well on various tests. Higher academia struggles every day with the problem that, even correcting for background or income or educational level of parents or any other criteria, blacks consistently underperform whites and asians. In the academic world of higher education, this is mostly swept under the carpet, but the New Haven firefighters have brought the problem out into the limelight again. If the career at hand is in the NBA, we all undertake a polite fiction to ignore disparate ability; if it’s higher education, we correct it in the shadows and extend preferences quietly; if the disparity is revealed at the level of the general population, it becomes more difficult to persist in the fiction that disparate groups are not disparate in innate potential.
It is a popular notion that all population groups are somehow equal in potential, but this has never been shown to be the case. If one assumes all population groups are equal, then one can argue that a test which fails all blacks and passes only whites must be biased somehow; the disparate results are taken as prima facie evidence of that bias. Because this assumption is wrong, the conclusion is wrong, and because the subsequent machinations are built upon a wrong premise, there is no way to make sense of them.
Snowboarder Bo Yeah thanks for clarifying that. I was starting to think that might be the mistake I was making and the way you put it solidifies it for me. I was definitely reading, ‘can’ as, ‘permissibly may’.