Unraveling the Ricci Opinion
Monday July 13, 2009
My colleague Justin Quinn at About.com: U.S. Conservative Politics has blogged a rebuttal to my last piece on the Supreme Court's Ricci v. DeStefano ruling.
Much as I hate to argue with a blog entry that begins on such a kind note, this is not an academic argument among friendly bloggers. This is a ruling that could have a long-term negative impact on civil rights in this country.
Justin writes:
It is easy to imagine that the Supreme Court could have ruled 5-4 in the opposite direction if the city of New Haven had not thrown the test out. Or the Supreme Court could have ruled, in a manner otherwise consistent with the views of the 5-4 majority, that the decision faced by city leaders was too difficult to warrant a lawsuit filed by either side. Instead, five justices decided that the test obviously should not have been thrown out, and that the white firefighters obviously should have benefited from the test's racially disparate effect. It is suddenly extremely difficult for a local government to comply with Title VII regulations, because there are now precedents that would justify liability on either side of the question.
A conservative judicial philosophy would have reduced liability. By increasing liability in a manner that functionally weakens the Civil Rights Act by making compliance with the Act a potential violation of the Act, the Court has undermined civil rights law.
Justin further writes:
Furthermore, the test was not an "objective exam"; like all exams, it had authors. In this case it was designed by a private business to satisfy an antiquated union agreement that overemphasized written test material relative to oral interviews, and subsequently produced racially disparate outcomes relative to the testing system used in nearby Bridgeport, which did not produce racially disparate outcomes. The Bridgeport testing regime would have a far more credible claim for objectivity, particularly given New Haven's peculiar history on the issue of racial discrimination within the fire department--which is why New Haven's history on this issue, brought up by Justice Ginsburg in the dissent but dismissed by conservative bloggers (including Justin) as an example of "left-wing judicial activism," is in fact completely relevant to the question of assessing disparate impact under Title VII. Even Justice Alito tacitly acknowledges the legitimacy of Justice Ginsburg's invocation of New Haven's history in his concurrence to the majority ruling. It is impossible to assess disparate impact without some sense of context. Indeed, the entire corpus of civil rights law is written as a specific response to a troubling discriminatory context--not as an imposition of abstract principles, but as a direct response to the legacy of racial segregation. Whether the history of New Haven's fire department is relevant to the ruling or not, the question of its relevance is relevant. The local context of disparate impact must be acknowledged, even if it does not alter the outcome of the ruling.
Minority firefighters in Connecticut already knew that Bridgeport presented more opportunities for minority candidates than New Haven did. New Haven city officials tried to make their system more like Bridgeport's in order to address the most recent demonstration of this disparity, which is exactly what Title VII asks them to do. The Supreme Court punished them for it.
But the damage this ruling does goes much deeper than that. It will almost certainly have a chilling effect on any city governments that attempt to correct racial inequities directly, that prioritize equal opportunity. Worse, it moves us further in the direction of an interpretation of Title VII that, as Justice Scalia implies in his concurrence, could eliminate disparate impact--the actual effect of discrimination--from civil rights law entirely. The more the Supreme Court prioritizes intent (which does not directly produce any evidence) over effect (which by definition does), the weaker civil rights law, in general, becomes. This is true of Title VII, and it is also true of the Voting Rights Act. Courts do not have the power to read minds, and a system of civil rights law that operates on the premise that they do will not be very effective at actually achieving its goals. This is the real tragedy of the Ricci ruling: it represents a small step backwards in the history of American civil rights, and it removes one of the few weapons local governments have against racial discrimination. It does so unnecessarily, as an expression of five justices' philosophical opposition to a broad disparate-impact standard, and it does so capriciously, in a manner that could not have been predicted based on prior Title VII rulings and in a manner that is aggressive, punitive, and does not reflect the sort of judicial-consensus via media approach that Chief Justice Roberts once claimed to value.
Worst of all, in a country where racial disparities shave as much as a decade off of life expectancy and as much as $20,000 off of median annual household income, this ruling may have a human cost extending far beyond the city borders of New Haven. If local governments cannot make good-faith attempts to remedy the racial disparities that they create without fear of litigation, then the federal government may become in some respects an enemy of equal opportunity rather than an an instrument of it. I will watch how lower federal courts interpret Ricci very closely, but I do not have high hopes.
Related:
Much as I hate to argue with a blog entry that begins on such a kind note, this is not an academic argument among friendly bloggers. This is a ruling that could have a long-term negative impact on civil rights in this country.
Justin writes:
In this case, the City of New Haven, Conn., bowing to threats of litigation from its minority firefighters, discarded the test's results solely on the basis of the firefighters' race, a direct violation of the Civil Rights Act of 1964.The litigation in question would also have been filed under the Civil Rights Act of 1964, and this is the crux of the case. The municipal government of New Haven, after a series of Civil Service Board hearings, decided to throw out a test on the basis that it might have had a racially discriminatory effect on promotions. White firefighters sued on the basis that the test should not have been thrown out.
It is easy to imagine that the Supreme Court could have ruled 5-4 in the opposite direction if the city of New Haven had not thrown the test out. Or the Supreme Court could have ruled, in a manner otherwise consistent with the views of the 5-4 majority, that the decision faced by city leaders was too difficult to warrant a lawsuit filed by either side. Instead, five justices decided that the test obviously should not have been thrown out, and that the white firefighters obviously should have benefited from the test's racially disparate effect. It is suddenly extremely difficult for a local government to comply with Title VII regulations, because there are now precedents that would justify liability on either side of the question.
A conservative judicial philosophy would have reduced liability. By increasing liability in a manner that functionally weakens the Civil Rights Act by making compliance with the Act a potential violation of the Act, the Court has undermined civil rights law.
Justin further writes:
Last week, the Supreme Court issued a 5-4 ruling in the reverse discrimination case regarding 19 white firefighters and one Hispanic firefighter who were denied promotions because they outperformed African American firefighters on an objective exam.Actually, contrary to what has been reported on much of the conservative blogosphere, both African-American and Latino firefighters were disparately affected by the test. In fact, the pass rate for Latino candidates was the same on the captain exam (37.5% for both African-American and Latino candidates), and lower on the lieutenant exam (20% for Latino candidates versus 31.6% for African-American candidates). Pass rates for both groups are well beyond the EEOC's criterion for disparate-impact assessment, and Justice Kennedy himself acknowledges this on page 27 on the ruling. I point this out not as a criticism of Justin, but merely as a reminder of the importance of reading the text of the ruling itself (Adobe PDF) rather than relying on secondary sources, which often paint an inaccurate picture of the circumstances surrounding a ruling.
Furthermore, the test was not an "objective exam"; like all exams, it had authors. In this case it was designed by a private business to satisfy an antiquated union agreement that overemphasized written test material relative to oral interviews, and subsequently produced racially disparate outcomes relative to the testing system used in nearby Bridgeport, which did not produce racially disparate outcomes. The Bridgeport testing regime would have a far more credible claim for objectivity, particularly given New Haven's peculiar history on the issue of racial discrimination within the fire department--which is why New Haven's history on this issue, brought up by Justice Ginsburg in the dissent but dismissed by conservative bloggers (including Justin) as an example of "left-wing judicial activism," is in fact completely relevant to the question of assessing disparate impact under Title VII. Even Justice Alito tacitly acknowledges the legitimacy of Justice Ginsburg's invocation of New Haven's history in his concurrence to the majority ruling. It is impossible to assess disparate impact without some sense of context. Indeed, the entire corpus of civil rights law is written as a specific response to a troubling discriminatory context--not as an imposition of abstract principles, but as a direct response to the legacy of racial segregation. Whether the history of New Haven's fire department is relevant to the ruling or not, the question of its relevance is relevant. The local context of disparate impact must be acknowledged, even if it does not alter the outcome of the ruling.
Minority firefighters in Connecticut already knew that Bridgeport presented more opportunities for minority candidates than New Haven did. New Haven city officials tried to make their system more like Bridgeport's in order to address the most recent demonstration of this disparity, which is exactly what Title VII asks them to do. The Supreme Court punished them for it.
But the damage this ruling does goes much deeper than that. It will almost certainly have a chilling effect on any city governments that attempt to correct racial inequities directly, that prioritize equal opportunity. Worse, it moves us further in the direction of an interpretation of Title VII that, as Justice Scalia implies in his concurrence, could eliminate disparate impact--the actual effect of discrimination--from civil rights law entirely. The more the Supreme Court prioritizes intent (which does not directly produce any evidence) over effect (which by definition does), the weaker civil rights law, in general, becomes. This is true of Title VII, and it is also true of the Voting Rights Act. Courts do not have the power to read minds, and a system of civil rights law that operates on the premise that they do will not be very effective at actually achieving its goals. This is the real tragedy of the Ricci ruling: it represents a small step backwards in the history of American civil rights, and it removes one of the few weapons local governments have against racial discrimination. It does so unnecessarily, as an expression of five justices' philosophical opposition to a broad disparate-impact standard, and it does so capriciously, in a manner that could not have been predicted based on prior Title VII rulings and in a manner that is aggressive, punitive, and does not reflect the sort of judicial-consensus via media approach that Chief Justice Roberts once claimed to value.
Worst of all, in a country where racial disparities shave as much as a decade off of life expectancy and as much as $20,000 off of median annual household income, this ruling may have a human cost extending far beyond the city borders of New Haven. If local governments cannot make good-faith attempts to remedy the racial disparities that they create without fear of litigation, then the federal government may become in some respects an enemy of equal opportunity rather than an an instrument of it. I will watch how lower federal courts interpret Ricci very closely, but I do not have high hopes.
Related:
Comments
no more single judges. they don’t care bout this country’s future. nothing at stake for them.
Sorry for this long response, but I’d like to clear some things up.
Your post seems to imply that I didn’t read the ruling. Not only did I read the majority decision, I also read the dissent. I read the entire thing cover-to-cover.
Nor did I dismiss the Bridgeport test. I didn’t mention it because I found the “everybody else’s tests are fair” argument to be rather flimsy and unapplicable. Frankly — if you read the ruling — the test was designed with the racial history of New Haven in mind — not the racial history of Bridgeport. The company that developed the test — again, with the blessing of a cross-section of New Haven’s citizenry — went above and beyond its requirements to ensure racial sensitivity. You, yourself acknowledged this, when you questioned whether by working so hard to avoid violating Title VII they may have actually violated Title VII.
“Whether the history of New Haven’s fire department is relevant to the ruling or not, the question of its relevance is relevant.”
I take issue with this statement literally and contextually. First of all, the history is not relevant to the ruling, and I cannot agree that the question of its relevance is relevant to the ruling. That’s basically saying it’s relevant to the ruling. I — and other conservatives — are willing to acknowledge New Haven’s history, and you and I apparently agree that it is appropriate that this history is acknowledged in the ruling. But to say it is relevant to the ruling strikes at the very heart of what conservatives believe to be the central problem with liberal activist courts — especially when it comes to issues like affirmative action. When making a ruling, these courts look beyond what’s in front of them, and base their decisions on what they believe is the “greater good.” This is liberal activism — or what you call (in this case) “moral complexity.” In the end, liberal activism erodes our court system’s credibility right along with the civil liberties of average American citizens.
“It will almost certainly have a chilling effect (sic) on any city governments that attempt to correct racial inequities directly, that prioritize equal opportunity.”
Here is another problem with your inherently liberal outlook on civil liberties. This is the kind of statement that fundamentally reveals your political bias. The role of city governments is not to directly meddle with racial inequities. Certainly, they must be sure to comply with the federal government’s Equal Opportunity laws, but the authority for overseeing this compliance is not city government. It is the federal government. This is what’s wrong with our cities and towns across America when liberals take control of them. Instead of focusing on serving their communities, these people are focusing, instead, on imposing their politics — and spending taxpayer money to do it. New Haven developed a test, implemented it and then threw away results it considered undesirable. Had the situation been reversed, and the African American firefighters outperformed the white and Hispanic firefighters, we’d have never heard of this case. The books, rightly, would be closed and the results certified.
You say that Ricci is a backward step away from Civil Rights law. Ricci actually marks a significant step forward. It recognizes that equality in America is a two-way street. It allows for the fact that, occasionally, there will be disparate outcomes and results. The odds are just stacked that way. That’s the way the world works. Odds are odds because no system is completely perfect. To quote the great Hunter S. Thompson, “Even a blind pig finds an acorn once in awhile.”
When we, as Americans, begin to understand that the world is sometimes unfair for reasons we cannot comprehend — and that when due diligence has been performed, it is most likely randomness, not prejudice, at the root of that unfairness — we’ll be able to get along better as a society. Sometimes white people will lose out. Sometimes black people will lose out. In the end, though, the scales will be balanced as long as the due diligence has been carried out — as it was in this case.
Supreme Court Justices — and indeed all judges — have a judicial duty to uphold stare decisis, and the Ricci ruling reflects the majority’s decision to do that. Re-interpreting the law according to the whims of fancy is tantamount to basing legal decisions on which way the wind is blowing. New Haven had a choice — to certify or not to certify. Its decision – to trash the results in order to avoid an affirmative action lawsuit — was not the appropriate decision under Title VII. It wouldn’t have been the appropriate decision had the city certified the results solely to avoid a lawsuit from the white firefighters, either. We cannot deny people rights because we might be sued. If the lawsuit comes, it comes. But the courts must uphold decisions made by Congress when those decisions are constitutional. In this case, the majority Justices discharged their judicial duties, regardless of where — or how — the chips may fall.
(Your “(sic)” after “effect” is a little strange, as I used the word correctly; I think you’re confusing the words “affect” and “effect,” which happens sometimes.)
“Your post seems to imply that I didn’t read the ruling. Not only did I read the majority decision, I also read the dissent. I read the entire thing cover-to-cover.”
I was talking about our readers, which is why I provided a link to the ruling; if they went by your blog entry, they would think the only people negatively affected by the test were African-American when, in reality, Latinos were even more affected.
“First of all, the history is not relevant to the ruling, and I cannot agree that the question of its relevance is relevant to the ruling. That’s basically saying it’s relevant to the ruling.”
Your response to Justice Ginsburg’s view that history is relevant to the ruling seems to be to simply repeat, over and over, that it isn’t. That’s not an argument.
“The role of city governments is not to directly meddle with racial inequities.”
This is a right-libertarian perspective on race, and you have every right to hold it but it is out of the mainstream with respect to the views held by the ACLU and other self-identified civil liberties groups.
“When we, as Americans, begin to understand that the world is sometimes unfair for reasons we cannot comprehend — and that when due diligence has been performed, it is most likely randomness, not prejudice, at the root of that unfairness — we’ll be able to get along better as a society.”
Randomness can’t account for the profound age, income, educational, and job opportunity disparities that correlate along race, and as long as you and I as white people benefit from these disparities, it’s all too easy for us to “begin to understand” together that there are not deeper problems that need to be addressed.
“Supreme Court Justices — and indeed all judges — have a judicial duty to uphold stare decisis, and the Ricci ruling reflects the majority’s decision to do that.”
No, stare decisis would have required the Court to acknowledge the fact that it has ruled based on the EEOC’s disparate-impact ratios before, and to at the very least grant qualified immunity on the basis that a city government’s adherence to precedent can be taken as a sign of good faith. The Court, ostensibly with the intent of creating a chilling effect for city governments that attempt to directly address disparate impact, chose not to follow this course. To find liability where none existed before in this context was, by any practicable definition of the term, right-wing judicial activism.
Why haven’t the minority firefighters filed a suit against New Haven? The Court only ruled that a fear of suit was not sufficient grounds for the city to ignore the test results; it did not judge the objectivity of the test.
In this case it was designed by a private business to satisfy an antiquated union agreement that overemphasized written test material relative to oral interviews, and subsequently produced racially disparate outcomes relative to the testing system used in nearby Bridgeport, which did not produce racially disparate outcomes.
Let’s be honest about what the issue is here: on written tests, blacks and Latinos consistently underperform in comparison to whites. These tests, if not totally objective, are going to be about as objective (in the sense of being graded without respect to a test-taker’s race) as you can get. Certainly they are more colorblind than a face-to-face interview where the interviewer knows darn well that to avoid a lawsuit, he had better grade the applicants so that the right number of people from each racial background get hired.
Let’s also be clear here: the reason why cities prefer to give heavier weights to oral interviews is precisely because the oral interviews are less objective. They want to make darn sure that the thumb is on the scale in the appropriate places to get the desired result.
The Bridgeport testing regime would have a far more credible claim for objectivity,
Translation: it would give the desired results.
Why don’t you simply admit that you want the tests fixed (in the 1919 World Series sense) so that a certain percentage of those who pass belong to each racial group, regardless of how they actually do?
I can’t “admit” something that isn’t true, Glaivester. Let’s go through this item by item:
1. The test relied on expensive textbooks that not all students could obtain.
2. Students had a leg up on obtaining textbooks if they were given advance knowledge that these textbooks would be used. Some were, particularly well-connected students who were second- or third-generation firefighters–who, in New Haven, would be almost exclusively white.
3. The reason whites tend to perform better, statistically, on written tests is because whites tend to be more included, statistically, in the world of the written medium. Blacks, in particular, tend to outperform whites in tests of verbal memory and verbal skills–a reflection of the fact that black culture tends to be more oral than white culture, which is why you don’t run into very many whites who can freestyle. If the Bridgeport numbers are any indication, testing should incorporate both verbal and written components, weighed towards verbal components, to eliminate bias.
4. Having read the somewhat dubious arguments you mention on your linked blog re: race and IQ, I would like to remind you that Latino is an ethnicity, not a race. I would also like to remind you of the Flynn Effect which, if you Google it, describes a phenomenon that disproves the validity of IQ as a measure of biological intelligence.
5. The idea that examiners consistently “throw” oral tests to produce a desirable racial mix simply doesn’t hold water. It presumes dishonesty on the part of proctors, as well as an amazing capacity to coordinate a desirable outcome in cases where multiple proctors are used.
Wes, that’s a very good question. If I were them, I would. Wouldn’t it be interesting if both the white and minority firefighters ended up winning Title VII lawsuits? That would demonstrate the incoherence of Ricci better than any other outcome I can think of.
Hi, Tom Head. Your pinshot makes you look wall-eyed. Your hair, crown makes you look unkempt. Your writing on this matter makes you look astute. Do us and yourself a favor. Go get a haircut and a glamour shot. LOL.
In regard to the pressing issue of Tom’s hair, my expert Style Channel opinion has determined that it is, on the contrary… rockin like a hurricane.
Tom, you make my blog posts look pathetic.
I’m not sure that I read that right? That murdering a fetus is the same as “other forms of accidental death”? Ludicrous. Accident did not require a woman togo to her doctor, make an appointment, take medications that help the procedure, appear at the time of the apointment, undress, get up onto the table, and have the doctor oinvade her body and take the baby out and kill it.
I see nothing “accidental” in that.
I, and millions of American women, have taken part in this procedure. I did it for partly medical reasons, but I still ask God to forgive me, because I realized later that it was wrong, horribly wrong, and I am now horrified at this country which promotes the practice. It is even in the Bible, that God knows us even in the womb, and I wonder what he thinks about the killing of millions of babies.
And the activists keep telling us there are no such things as “quotas”.