High Court: White Firefighters Are Victims Of Bias

[defendandprotect]

I've posted this because it has become part of the discussions re Sotomayor --
and because I don't recall having seen this article posted here at DU????
------------------

Jun 29, 2009 5:00 pm US/Mountain High Court:

High Court: White Firefighters Are Victims Of Bias
Supreme Court Ruling Reverses Judge Sonia Sotomayor's Decision

The Supreme Court WASHINGTON (AP) ― Click to enlarge1 of 1
A statue sits on a flag pole in front of the U.S. Supreme Court, June 12, 2008 in Washington.
Mark Wilson/Getty Images

The Supreme Court declared Monday that white firefighters in Connecticut were unfairly denied promotion because of their race, ruling against minorities in a major reverse discrimination case that could affect bosses and workers nationwide. The justices threw out a decision that high court nominee Sonia Sotomayor had endorsed as an appeals court judge.

In its last session until September, the court's conservative majority prevailed in a 5-4 ruling that faulted New Haven and the courts that had upheld the city's discarding of results of an exam in which no African-Americans scored high enough to be promoted to lieutenant or captain.

The city said it acted to avoid a lawsuit from minorities, but Justice Anthony Kennedy said in his majority opinion that New Haven's action amounted to discrimination based on race against the white firefighters who were likely to be promoted.

"No individual should face workplace discrimination based on race," Kennedy said.

The ruling restricts, but does not eliminate employers' ability to take diversity into account in employment decisions. But the ruling could make it harder for minorities to prove discrimination based solely on lopsided racial hiring or promotions.

http://cbs4denver.com/national/supreme.court.discrimination.2.1063720.html


THIS has been a large part of ending discussions at Sotomayor hearings --
I wasn't really familiar with the case -- and I still haven't take a very close look
but will later.

[Joanne98]

1. What's the percentage of white firefighters in America?

[CTyankee]

4. The % of minority firefighters has probably increased, but this case was

about promotion of firefighters to command positions. I think the more relevant question is how many of those in command positions are white.

The case in New Haven involved a test that basically tested memorization of some data (including some that did not apply to New Haven), and was aggravated by a corrupt administration in the city and an arrogant and incompetent mayor with a corrupt community pol who bullied him into throwing out the test results. Better, more accurate tests exist and are used all over the country with more racially balanced results. If that kind of test had been used we wouldn't have gotten this case and affirmative action would not have taken the hit it took...

[defendandprotect]

15. Thank you -- and I think it very definitely tries to deliver a message ...

to those who will respond emotionally and not thoughtfully to this decision

that Affirmative Action/Reverse Discrimination is the problem and not corruption --

not the continuing attempt to keep African-Americans out of leadership roles.

Thanks again -- for all the information on the tests!

:)

[CTyankee]

17. Actually, no. The mayor made a deal with the firefighters union to use the written test.

Some unions are unfortunately protectors of their white male turfs and this has been a problem with FDs and PDs across the country. The problem IS racism.

[defendandprotect]

26. I was referring to the 5-4 Supreme Court decision . . .

and I think I got this part of it . . .

The case in New Haven involved a test that basically tested memorization of some data (including some that did not apply to New Haven), and was aggravated by a corrupt administration in the city and an arrogant and incompetent mayor with a corrupt community pol who bullied him into throwing out the test results. Better, more accurate tests exist and are used all over the country with more racially balanced results. If that kind of test had been used we wouldn't have gotten this case and affirmative action would not have taken the hit it took...
CTyankee

[CTyankee]

28. OK, got it! Sorry, I am in rant mode after this whole hearing and all this moaning and groaning

over Frank Ricci. I think I'm in "overreact mode" as well...

[defendandprotect]

30. I know . . . . and this "firefighter" case has been kind of background in my mind . . .

like quite a number of other things that go on and it's annoying to find that you have

to play catch-up with three or four things at one time.

Somehow I just never got to looking at this case -- and then I don't think the SC ruling

was posted here two weeks ago? At least I didn't see it.

Anyway, thank you for all your help in trying to understand it and I still have a lot

of catching up to do!

:)

[CTyankee]

36. Unfortunately, I know a lot about this case, more than I want to know really.

If you have questions I may be able to answer you...or maybe not!

Anyway, I guess I'll have to handle my anger...

[defendandprotect]

39. I know that this case like a lot of other stuff that goes on politically in

this country can give you high blood pressure -- !!!

thanks!

[Rage for Order]

58. Repeating inaccurate information will not make it true

http://news.morningstar.com/newsnet/ViewNews.aspx?article=/DJ/200906291832DOWJONESDJONLINE000639_univ.xml

In 2003, New Haven hired professional testing firm Industrial/Organizational Solutions, Inc. to develop its promotional exams for both captains and lieutenants. Applicants needed to be well-versed on a wide range of topics including fire science, building and high-rise construction and collapse, advanced rescue techniques and how to respond in the case of fires and other catastrophes.

The exam was composed of two sections. The first was a written exam of 100 multiple-choice questions focused on technical job knowledge that counted for 60% of the total score. According to the brief filed by Ricci and other petitioners, the exams were written below a 10th-grade reading level. Next came an oral exam, weighted 40%, in which panels of three experts evaluated how well firefighters could assess a situation and direct others in an emergency.

In its critique of the test, the city noted that the test contained questions that were irrelevant to New Haven. This included whether to approach an emergency from uptown or downtown - a distinction not meaningful in New Haven, city officials said. The city also argued that placing more emphasis on memorized knowledge put the minority candidates at a disadvantage. If the oral exam had counted for 70% of the total, three black firefighters would have been contenders for promotions, attorneys for the city noted.

But the white firefighters, led by Frank Ricci, said the tests were not skewed. Firefighters who completed a questionnaire following the exam overall said it was "fair and job-related," they noted. The tests were developed based on professional textbooks, in collaboration with New Haven Fire Department's top two officers. Three months before the test, the city gave firefighters a syllabus of the topics that would be covered to help them study.

[defendandprotect]

61. Right . . ."repeating info will not make it true" .. . no matter who does it --

Of course, multiple choice is easy to rig -- 60% of the total score!
Oral exam can also be rigged - 40% of total score!

And what would you expect the white firefighters to say other than that the
tests were not "skewed"? And by any chance, were the "firefighters" who said
it was "fair and job-related" have been mainly white? The question isn't what
information was given to all, but what information might have been given to some.

Meanwhile, when you look at who took the tests -- 41 whites/9 AA/6 Hispanics
it seems clear that New Haven has a mainly white firefighting force.

[Rage for Order]

74. But there were no allegations of test rigging, just undesireable results

According to the city, anyway. They never claimed the test was rigged in any way.

And yes, let's look at who took the test. You said:

"41 whites/9 AA/6 Hispanics"

That's 56 total candidates, using your numbers (I haven't verified them, but I'll take your word for it). Now let's look at those numbers proportionately:

41/56 x 100 = 73.21% of candidates were white
9/56 x 100 = 16.07% of candidates were black
6/56 x 100 = 10.71% of candidates were Hispanic

When you have a moment, look up the racial demographics of both New Haven, CT and the US as a whole and let me know if blacks and Hispanics were under or over - represented in the candidate pool as it relates to both the local and national demographic mix. It apperars to me that blacks and Hispanics were over-represented, but feel free to pull the census bureau data if you care to dispute this.

[defendandprotect]

81. Ah . . . but there were . . . !!! ...

New Haven had previously been sued by firefighters for discrimination . . .
that's why they understood the peril they were in regarding the "disparate-impact"
re the test that had just been given --

ADDITIONALLY . . . Kennedy notes this . . .

"because of controversy surrounding previous examinations"

*************************************************************

As witnesses make clear, the test could not have withstood challenge --

Additionally, study materials had cost $500 and out of stock with month and a half delay.
That have the ring of a poll tax?

Significantly, the white firefighters generally had a relative who was with the department
or had previously served and the materials were available to them.

See my further comments below under "For the record" --

There's a link to both majority and minority opinions if you're interested --


Critical understanding = rebellion = organization = change


And, actually the figures I first used were wrongly stated in some of the reports --

I think 77 whites - 19 AA -- also a larger number of Hispanics took the Lieutenant exam.

You'll find a better report on the actual numbers in the opinions -
there's a link there

And, if you want a "dispute" read Gingsburg's opening on the long shadow cast by discrimination
in municipalities -- firefighters --

and about the lawsuit against New Haven for historical discrimination against minority firefighters --

[Fire_Medic_Dave]

84. Once again this was a new test. How would previous materials have helped on a new exam?

[defendandprotect]

94. Did you read the post -- ??? New Haven had history of discrimination vs minority firefighters . .

I am giving you background as to the discrimination as related in the opinions --
i.e., New Haven had a HISTORY of discrimination vs minority firefighters.

AND, previous exams were deemed "controversial" -- in other words, biased.

QUOTE --
New Haven had previously been sued by firefighters for discrimination . . .
that's why they understood the peril they were in regarding the "disparate-impact"
re the test that had just been given --

ADDITIONALLY . . . Kennedy notes this . . .

"because of controversy surrounding previous examinations"

************************************************************* UNQUOTE

RE THE NEW TESTS . . .

Witnesses/experts made clear that the new tests were so questionable as to not be
able to withstand challenge -- i.e., they would have been seen as biased.

QUOTE --

As witnesses make clear, the test could not have withstood challenge --

Additionally, study materials had cost $500 and out of stock with month and a half delay.
That have the ring of a poll tax?

Significantly, the white firefighters generally had a relative who was with the department
or had previously served and the materials were available to them. UNQUOTE


In regard to the "materials" obviously the same materials were still being used . ..
otherwise the white firefighters would have failed -- right?


Other info if you need it repeated here ...

See my further comments below under "For the record" --

There's a link to both majority and minority opinions if you're interested --


And, actually the figures I first used were wrongly stated in some of the reports --

I think 77 whites - 19 AA -- also a larger number of Hispanics took the Lieutenant exam.

You'll find a better report on the actual numbers in the opinions -
there's a link there

And, if you want a "dispute" read Gingsburg's opening on the long shadow cast by discrimination
in municipalities -- firefighters --

and about the lawsuit against New Haven for historical discrimination against minority firefighters --



Critical understanding = rebellion = organization = change

[Fire_Medic_Dave]

95. The previous test were biased so they were replaced by a new one.

[defendandprotect]

96. Which couldn't stand challenge because it would also be seen ...

as biased . .

read the post --

you may not like the information, but much of it supplied by Kennedy who seemed
to argue against his own opinion!

[Fire_Medic_Dave]

99. The City refused to have the test reviewed for bias.

[defendandprotect]

101. Presumably they didn't want that confirmed . . .

but the test was biased, of course --

as the witnesses/experts made clear in saying it wouldn't hold up to challenge.

Remember, they adherred to the wishes of the union for a multiple choice/oral

exam -- which surprised even the people assigned to create the test.

Evidently 2/3rds of tests being given were done quite differently --

especially in regard to crediting multiple choice with 60% of the score!

Usually, it was 30% --

Additionally, the NH situation was seen as so contaminated that they had to '

bring in people from out of town to serve on the panel for the oral exam!

Look for my post near bottom of thread -- "For the Record" -- has a lot of info

re the opinions.

[MercutioATC]

2. I agree with the SC decision.

The fact that no minorities achieved the required score on the test while Caucasian applicants did should trigger an automatic review to determine if there was any bias in the test. If no bias was found, the results should have stood.

[defendandprotect]

5. From what we know of standardized tests, they are biased . . .

[PassingTimeHere]

6. No, we do not know that. We know that "some" tests are biased.

Tests involving subjects like history and English could very well have a bias in them. Factual tests regarding the burn rate of a certain material - not so much.

[defendandprotect]

11. You're correct . . . I was referring to "standarized" tests --

I'm not familiar with how these specific tests were put together --
it would be interesting to see them.

However, it is still suspicious that African-Americans wouldn't qualify under these tests.
They manage to prevail and quite successfully in every other profession.

Despite what may seem facts, sometimes the way the question is presented can create a
problem -- we're familiar with that from polls often.

[CTyankee]

19. The questions about fire science are on a test that one has to pass tobecome a firefighter

in the first place. If they don't know the basics there with a question such as you posit, they have no business being firefighters to begin with.

Testing for promotion to leadership positions is a whole other area. A multiple choice pencil and paper test is not good at determining such leadership qualities. Simulation is a good way to test whether a firefighter has command presence, ability to make good decisions in high pressure situations, ability to lead the firefighters, etc. Actual performance reviews of each test taker's past performance of duties should also factor heavily.

The test New Haven gave relied on ability to memorize and that has little to do with the test takers ability to lead in dangerous situations requiring quick thinking and wise decisions...

Oh, and BTW, the New Haven test had a question asking whether a fire truck at a fire should be parked facing uptown or downtown. Well, New Haven does not even HAVE such an orientation. So much for relevance of this vaunted "test."

[PassingTimeHere]

21. It doesn't matter if the test is the worst of the lot.

Legally, what matters is whether or not the test discriminated against minority firefighters. The City of New Haven lost in the Supreme Court because they made no attempt to prove that.

Hopefully, a better system of promotion will be put in place.

[CTyankee]

27. No argument from me on that. I was just commenting, as a New Haven resident, on

the way this miserable situation came to pass. You have no idea how furious I am with my city's mayor...he is running again for office this year and I will NOT vote for him (voting for the Green candidate)...

[defendandprotect]

34. Obviously, it did . . . because they failed. Are we to believe that they are inferior

to the others who took the test?

If the tests were thrown away, I think its a good indication that there should be suspicion.

Hopefully we will one day get rid of this very right wing court.

I'll stick with Sotomayor on this one --

[Statistical]

46. Sotomayor agrees with SCOTUS ruling on this one.

She said so in the confirmation.

Her position was more a matter of the law.
She believed that she had no binding precedent which would allow her to say the city actions were discriminatory.
The reason why is Title VI does allow preventive action to avoid discrimination.

SCOTUS clarified the issue saying preventive action is acceptable however there is a level of proof required.
Sotomayor agreed with that assessment however that precedent didn't exist at the time she ruled.

[CTyankee]

55. yes. You are right.

My issues are with the city of New Haven, where I live. I am livid that my mayor did this not only to our city but to the entire country on affirmative action, when a better test could have averted this outcome.

It is still a sad day for me...

[Raineyb]

87. It would appear based on some of these answers that that is exactly what people would have you

believe. I am sure that if a test had results that were so skewed that white people did not make the top places at all, that there would be no question whatsoever that there was a problem with a test. However, since the test only excluded black and Latino people then the problem is with the test takers because apparently some people can't fathom that a test could be biased (and we all know that's not true) It seems to me that there are a lot of people who despite their talk of begin progressives believe that white people are naturally more intelligent than black and brown people and as a result they ought to come out on top in any contest. That is to say, there are quite a few people whose beliefs on the intelligence of black and brown people quite mirrors Pat Buchanan's.

[eqfan592]

114. You missed the point entirely.

The point is that the city didn't even bother to see if the test actually did contain a bias before tossing out the results. The simple fact that of the very few minorities who took the test, few of them passed does not inherently mean that the test was biased. The possibility that those few people were in fact lacking in the knowledge necessary for the job has to be examined. If the city had done this examination of the test and found it to be biased, then throwing out the results would make perfect sense. However, they failed to take this very basic step, and thus the firefighters that passed had every reason to find the action unreasonable and unwarranted.

[eqfan592]

113. Your reasoning is flawed.

In order for your reasoning to be accurate, you have to assume that this VERY small sample size of minorities is directly representative of all minorities in the nation. I would contest that argument greatly, because of the aforementioned small sample size.

So the possibility exists that we simply have a case of these particular men not making the grade, so to speak, or being "inferior" as you put it. The city would have been better served to actually have the test examined to see if it was racially biased or not BEFORE tossing out the results. By failing to do this, they put themselves in a very awkward position, and gave the white firefighters the ammo they needed to win this case.

[defendandprotect]

33. Wow . . . there are certainly a lot of tricks in the barrel ...

and we should all be aware of them --!!

[PassingTimeHere]

54. Well...

To say that there's a better firefighter promotion test out there doesn't mean that this test is biased in anyway, so you can't really say it's a trick. it just means that another test might be more appropriate, up-to-date, harder, easier, covers more material, covers less material, more scientific matter, less scientific matter, covers more personnel questions (leadership abiilty), covers less personel questions, etc. You can argue that the best test or worst test would actually be quite subjective.

[CTyankee]

56. Except that such tests yield more racially balanced results.

What does THAT tell you?

[PassingTimeHere]

59. It tells me NOTHING. This group was too small to make that conclusion!

And minorities would have been promoted on the basis of this test - just not as many as the city wanted.

You cannot draw conclusions that like from ONE test of such a small group of people.

[defendandprotect]

64. Group is not to small to note that overwhelming presense

of whites in the testing group suggests that representation in the firefighting

ranks are biased towards whites.

That's quite clear!

[defendandprotect]

63. OTOH ...

Merely saying that it doesn't mean that this test was biased does not mean that it wasn't . . .

Or that it wasn't rigged in some other way -- with answers given to some, for instance.

The oral test, of course seemed more positive to the African Americans but it was
only responsible for 40% of the score.

Meanwhile, the fact that 41 whites took the test, but only 9 African Americans took
it -- and 6 Hispanics - suggests that New Haven is low on minority representation
in the firefighting ranks.

[Rage for Order]

62. One question does not a test make

Oh, and BTW, the New Haven test had a question asking whether a fire truck at a fire should be parked facing uptown or downtown. Well, New Haven does not even HAVE such an orientation. So much for relevance of this vaunted "test."

Did they ask all the firefighters this question, or only the black firefighters? If all of the candidates were asked the same "irrelevant" questions then I fail to see how the test was biased against one group more than another. What is it about being white that gives someone intrinsic knowledge about the direction in which to park a fire truck?

:shrug:

[MercutioATC]

7. ...and if bias could have been found in this test, I'd support throwing out the results.

The point is that this wasn't the standard. The results were discarded without even looking for possible bias...simply because of the outcome.


...and that's unacceptable, IMO.

[defendandprotect]

12. Suspicion remains that African-Americans couldn't compete successfully here?

Quite questionable since they manage to hold their own and succeed in pretty much
every other endeavor --

It is odd that the tests were thrown away -- could it have been a matter of how the
questions were presented -- ?

[TCJ70]

14. Weren't there also hispanic firefighters that did well...

...enough on the test as well? I thought I remembered that being part of the case. Does that change anything in the case?

[defendandprotect]

16. Haven't we also had cases where "preferred" candidates were given answers . . .??

There are many ways to rig tests --

Difficult to say what was really going on but I'm with Sotomayor --

I still haven't read the 5-4 right wing decision, but hope to get to it later .

[MercutioATC]

20. Evidence of tampering with the candidates would be a valid reason for action.

As far as I know, no such evidence (or even such a claim) exists.

[PassingTimeHere]

22. But no one ever alleged that in court. You have to deal with the facts at hand.

[MercutioATC]

25. Exactly.

[defendandprotect]

23. As I said, there have been OTHER cases where that happened . . .

why not in this one?

[MercutioATC]

24. Because it was never even alleged?

I'm not saying that it didn't happen, but there's no evidence or claim that it did.

What does the fact that other tests have been tampered with have to do with throwing out the results of this test?

[defendandprotect]

29. No . . . I didn't say . .

"tests were tampered with" --

I said that in some cases "preferred" candidates were given the answers.

That might be harder to prove -- you can at least challenge something in writing!

[MercutioATC]

31. Ok, to specify...there's no evidence that some candidates were treated differently.

...and none that some candidates were given answers.

There's not even an allegation.

[defendandprotect]

32. Not unusual . . .

things like that happen and we find out about them a long time later.

[MercutioATC]

37. How is that pertinent to this issue?

Court witnesses are occasionally threatened or bribed. Should we, then, call into question EVERY witness' testimony to the extent of discluding it?

[defendandprotect]

38. Given the history of corruption, we should question EVERYTHING . . .

[MercutioATC]

40. To the extent of throwing "everything" out?

If there's no evidence or allegations that some candidates were treated differently to a degree that it would influence their performance on the test, why should the fact that it has happened on other tests be an issue?

[defendandprotect]

41. Your "if" is the question you can't answer and neither can I . . .it's a possibility . . .

and let's not carry this on to the point where it feels like gum stuck on our

shoes, Okay . . .

ta-ta

[CTyankee]

53. The mayor agreed to the firefighter's union to give the written test.

Now that to me is significant. Other tests, used by fire departments in cities with racial makeups like New Haven (such as Bridgeport, 15 minutes away) do. These tests use simulation of real life situations and test reflexes, judgement, wise choices, handling of situation. That and use of actual performance reviews of firefighters, have been used successfully by FDs across the nation and they have yielded better racial outcomes.

What does THAT tell you?

[Rage for Order]

75. "Better" racial outcomes?

Wow, you don't even attempt to hide your bigotry, do you?

[CTyankee]

90. Damn right, better! Diversity is better. And unless you automatically think diversity

is "not as good" as the status quo (which is often categorized as the "ideal") you would question why there is not diversity of outcome. You seem not to be able to hide the bias behind your reasoning.

[ProgressiveProfessor]

49. MSM Stories said study guides with sample questions were made available to all applicants

[defendandprotect]

65. Great, but the question isn't what was made available to ALL applicants. . .

the question is what answers might have been given to a preferred group?

Half of the test -- 60% of the score -- was multiple choice.
Ever hear of anyone getting answers to m/c questions?

Additionally, the test group itself makes clear that the ranks of the firefighters
are overwhelmingly white --

41 whites/9 AA/6 Hispanics took the test

[ProgressiveProfessor]

68. Conjecture and scarcely basis for tossing a test prepared by an outside company

specifically to be gender and race neutral.

[defendandprotect]

78. "because of controversy surrounding previous examinations" --

isn't "conjecture" nor "scarce basis for tossing a test" . . .

New Haven had already been sued -- they understood they needed to comply and
that the test wouldn't hold up under scrutiny as they were clearly being told
by witnesses!

In fact, in order to do the oral section they had to call upon 30 individuals
from OUTSIDE NEW HAVEN . . .

Evidently that's why the minorities did better on the oral sections --

Additionally, the written section was weighed as 60% of the total whereas the
norm is 30% --

See my further comments below under "For the Record" --

[Fire_Medic_Dave]

71. No evidence of that was presented.

[defendandprotect]

79. New Haven had previously been sued by firefighters for discrimination . . .

that's why they understood the peril they were in regarding the "disparate-impact"
re the test that had just been given --

ADDITIONALLY . . . Kennedy notes this . . .

"because of controversy surrounding previous examinations"

*************************************************************

As witnesses make clear, the test could not have withstood challenge --

Additionally, study materials had cost $500 and out of stock with month and a half delay.
That have the ring of a poll tax?

Significantly, the white firefighters generally had a relative who was with the department
or had previously served and the materials were available to them.

See my further comments below under "For the record" --

There's a link to both majority and minority opinions if you're interested --

[Fire_Medic_Dave]

83. This was a brand new exam. Relatives couldn't have helped.

If New Haven has raised these issues at trial we might not be here now. It's almost as if this was the Mayor of New Haven's goal. The refused to have the test examined for racial bias. The company offered the city refused.

David

[defendandprotect]

97. It was based in some part on the materials which were still being used . . .

PLEASE . . . read the posts -- it helps.

[Fire_Medic_Dave]

100. Those same IFSTA and NFPA manuals that are in fire halls all over the country.

[Statistical]

35. Once again it is POSSIBLE the test was biased.

The city however has an obligation to look into the possibility and based on reasonable proof then take action.

The city held a public forum and many of the firefighters said that if the city didn't throw the test out they would sue.
The city NEVER proved the test was biased. The test maker actually offered to pay to have a 3rd party do a statistical analysis.

The city refused. They wanted the problem gone so they threw out the results because they didn't like them with no evidence of bias.

That is discrimination.

In Sotomayor's defense she was acting on previous precedent. The Supreme Court provided more guidance on the standards requires before the city can act under Title VII.

[defendandprotect]

43. Of course it's possible the test was biased or answers given in advance . . .

or some other method used of signaling correct answers for the "preferred" candidate --

And this is yet another questionable look into what was going on . ..

The city held a public forum and many of the firefighters said that if the city didn't throw the test out they would sue.

Again, if New Haven didn't "prove the test was biased," perhaps it was because they understood
that whatever had happened couldn't be proven nor disproven. Again -- there are many ways to
rig tests, to get answers to those you want to succeed. A 3rd party could look at the tests
for a year and still not figure out what happened.

Not proving it was biased is not the same as saying it was honest.

African-Americans are not in any way inferior to others who took the test - therefore, the
results are suspicious.

Nor do I think this is a Supreme Court -- 5-4 gang of five -- which is much concerned with
issues of rigging tests and the many ways it can be done as long as it continues to benefit
the status quo.

[Statistical]

45. So I think you might have robbed me. Give me the $1000 you may have stolen form me or you go to jail

Of course that wouldn't happen because we are (mostly Bush Co excluded) a country which believes in the rule of law.

The city contracted for the test.
The city provided study materials.
Some people like the plaintiff Mr Ricci spent hundreds of hours prepping, doing mock interviews, study groups, flash cards, and even paying someone to read the study material onto a cassette (to overcome his dislexia).

He did well on the test.
The city without any proof or even most basic reasonable suspicion throws out the results because they don't like it.

That is discrimination.

You really think it is a good idea for the govt to be run based on "suspicion" and not rule of law?

You also are misinformed. 3 Black candidates did pass the test (3 of 8) as did 3 Hispanics.

Only top 9 were considered for the promotion (per rules decided in advance by the city) which resulted in 7 whites and 2 hispanics.

The sample size is to small to say the test is biased. Maybe the 5 blacks who failed didn't do a good job. Maybe they weren't good firefighters, maybe the didn't prepare, maybe they expected the test to be easier.
Also remember 9 whites failed the test.

This doesn't mean NO blacks could pass the test it simply means that those 5 couldn't. Now if the test was given to millions of people that would be more statistically meaningful.

[defendandprotect]

60. Discussion and demanding are two quite different things . . .

[Fire_Medic_Dave]

85. Who demanded anything?

Ricci and the others thought they had been wronged, before they knew who was on the list to get promoted, they sued. They went through the appropriate channels and five years later they won. Personally I'm glad for them.

David

[defendandprotect]

103. Your example is one of outright claim ... vs discussion -- Meanwhile . . .

As Sotomayor correctly pointed out -- and Gingsburg confirms --

Since EVERYONE'S tests were thrown out, no one was hurt --

just get on with a new test.

2/3rds of the communities use a different system of judging --
certainly NOT like what was demanded by the firefighters union --
especially multiple choice as 60%! Highest is 30%.

If you're interested I reported more on the OPINIONS in the case ...
see "For the Record" at the end of the thread --

[Fire_Medic_Dave]

104. She's not that bright then. The people who scored well and had their scores tossed were hurt.

Most of our promotional exams are scored from 60%-100% multiple choice. African Americans have done quite well in my department. I got promoted to Captain with 3 African Americans out of 16 promotions.

David

[defendandprotect]

105. Right . . . she's a girl and she has cooties -- !!!

There's no reason why EVERYONE shouldn't have done well --

just do over . . .


Again -- these tests -- and evidently the tests your using are outdated --
2/3rd of the exams are done differently.

[Fire_Medic_Dave]

106. Actually the argument was that 2/3 of the department in that region, not nationwide.

[defendandprotect]

107. Okay . . . even more intense . . .

[Fire_Medic_Dave]

108. I do find it funny you question the results of my cities exams which have achieved racially...

equitable results.

[defendandprotect]

109. That's why New Haven was sued in the 1970's . . .

and why their tests then were controversial?

Granted, evidently they've made some improvement --

but what happened with the demand for this particular exam shows that it "ain't over yet!"

[Fire_Medic_Dave]

110. They were sued because their tests achieved racially equitable results????

[defendandprotect]

111. eh . . .

If you want to know what happened, go to my post "For the Record" --

OR . . . go to the OPINIONS in the case where both Kennedy and Ginsburg review

the history of the case --

Including that in the 1970's they were sued by firefighters for discrimination

against minorities!

ta-ta

[Fire_Medic_Dave]

112. Please read posts before cutting and pasting a response.

[Fire_Medic_Dave]

44. Several African Americans did pass the test.

They didn't score high enough to be promoted though.

David

[DatManFromNawlins]

51. Right.

If there are way more white firefighters than black, then there's a possibility that even if the white and black firefighters passed at the exact same rate, black firefighters might STILL be looked over for jobs if there were enough white firefighters that scored high enough on that test. New Haven's civil service code mandates that a candidate must be chosen from the top 3 scorers of a test.

If I have 20 total people who passed the exam but the top 5 are white and there are 3 positions available, then there's no chance whatsoever for a black person to advance.

(in this example, others refers to anybody, regardless of race)

First spot: 3 whites, 2 whites not considered, 15 others not considered either, 1 gets the job.
Second spot: 3 whites, 1 not considered, 15 others not considered either, 1 gets the job.
Third spot: 3 whites, none not considered, 15 others not considered either, 1 gets the job.

That isn't racism, it's stupidity.

[defendandprotect]

67. And that means what?

Obviously this discussion is about promotions --

Multiple Choice was 60% of the score --
Ever remember getting M/C answers in school?

And, additionally, AA seemed to have done better on the oral tests, but that
only counted for 40% of the score.

Again -- obviously African Americans are succeeding in every occupation which
requires intelligence so the question is why not firefighting?
Needless to say African-Americans are also 15% larger than whites so there should
be no physical problems.
Indeed, they are admired for their physical strength, coordination, agility!

[Fire_Medic_Dave]

70. That means that several passed the written test. Duh.

[defendandprotect]

77. Without qualifying for promotions -- duh

[Fire_Medic_Dave]

82. Yes so their combined scores on the written and oral exam weren't high enough.

[chucker47]

115. From what WE(?) know...they are biased...?

Who is we? Are you saying it is common knowledge that standardized tests are biased? The SCOTUS didn't conclude there was bias? If there is a direction the tests are leaning it is only toward literacy. The point of giving everyone the same test is to encourage everyone to head in the same direction academically. This is the USA and we speak english. Many, and I am one, believe people should speak english if they want to become citizens. Remember the fiasco of Oakland, CA and, pardon my spelling Ebonics? Trying to introduce a street language in to the public schools became the laughing stock of the country at the time. Teach Ebonics through high school and then have the kids take the firefighters standardized test and guess who would not do so well? The english language should be the standard and the only standard. If one wants to learn a second language that is fine, but english is the language of the land.

[PassingTimeHere]

3. I think the city should have hired based on the test, and THEN changed the requirements

for the next round of promotion if they couldn't get a better representation of minorities.

On the other hand, I'm not convinced a firefighters test is inherently racist, biased, or discriminatory like a history or english exam might be. Maybe study assistance should be available, and the test should account for only a portion of the requirement - like 50%. The other 50% could be based on work ethic, leadership skills, etc. But frankly, I'm not buying that minorities couldn't do well on the test, just because this group didn't do well on the test.

I also agree with the court on this one. You can't change the rules of the game where no discrimination has been proven.

[defendandprotect]

8. I at least agree with you re changing some of the testing . . .

interesting --

The fact that African-Americans, however, didn't succeed on these tests I think is quite
suspicious given their obvious intelligence and abilities in every other field.

[CTyankee]

57. Why not just give another test involving simulation of real life situations

and see how testees do on decision making in high pressure situations? Why not a review of actual performance by superiors and also peers? There are MANY ways to assess leadership qualities. A memorization pencil and paper test is a poor way to do so...

[seaglass]

69. Civil Service exams are used to keep politics out of hiring and promotions.

Once you start inserting subjective measures there is an increased opportunity for the hiring/promotions to be gamed.

40% of the score was based on oral interviews by a majority minority board, so it was not exclusively the score on the written test.

My husband is a firefighter and we have gone back and forth about promoting based on a civil service exam. In my town the absolute score is used and there are additional points given for leadership courses, veteran status and I'm not sure what else. But all measurements are objective.

I know that there are at least a couple that have been promoted that are lacking in leadership qualities - but they do have the firefighting knowledge required to do the job and it is possible to gain leadership skills on the job. In the private sector, I have seen many promoted based on more subjective criteria who do not have leadership qualities and are also lacking the job knowledge - again both things that can be learned on the job.

And btw, your continued statements about "memorizing data" dismisses the very real effort that firefighters give in preparing and studying for these tests. There are many jobs that require tests to be considered for a job, does a lawyer simply "memorize data" to pass the bar?

[CTyankee]

91. I would not compare a lawyer's job with that of a firefighter.

Lawyers can read about precedence in court cases and rationales used in formulating arguments for and against a point of law. A written exam is an excellent way of testing familiarity with and understanding of how the laws came to be decided in courts of law.

It seems obvious to me that testing for command presence in a highly pressurized atmosphere is better determined by simulation if not by actual performance. A simulation test is an excellent way of testing reactions and decisions based on quick thinking. Actual performance reviews of the person taking the test are excellent ways of determining how they will perform in the future. The basics of fire science are and should be determined by a written test in order for the person to become a firefighter IN THE FIRST PLACE. Ricci et al were all seasoned firefighters. They had already passed tests that required data memorization.

[Fire_Medic_Dave]

72. Hopefully they will change the process next time.

I know our civil service tests are predefined before any testing starts. To add something at a later point would change the test.

David

[NJmaverick]

9. You know the irony is thanks to Bush/Reagan/Bush

the court is packed with close minded right wing bigots. So they pack the court with their idealogical breathren then declare those opinions to be scripture.

[defendandprotect]

13. And two weeks before the Sotomayor hearings they reverse her . .

5-4 . . . rightwing bias and pettiness, I'd guess --

I haven't read the decision -- I have to go back and look at it --

[brendan120678]

10. The SC didn't rule against minorities...

They ruled against the City of New Haven.

Just a minor point.

[PassingTimeHere]

18. Good point.

[sharesunited]

42. Is affirmative action truly dead now as public policy?

Perhaps so. It only lasted about forty years, but maybe all previous wrongs have been sufficiently righted to declare that the playing field is now level.

[Statistical]

47. Did you ever read the decision before you dragged out that nonesense?

Once a process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. - Kennedy Ricci v. DeStefano (2009)

Key words are "absent a strong basis in evidence".

Had the city even taken the most basic step in showing the probability of bias (not even absolute proof) that would lead to disparate impact they could have thrown the results out.
The ruling was extremely narrow.

About the only thing that is prohibited is what the city did. Arrange a test, give time to study for the test, execute the test and then throw out the results without any evidence.

[sharesunited]

50. Don't you think that was a smokescreen, though?

The anti-affirmative-action justices (I'm looking at you, self-hating Clarence Thomas) seized upon the lack of a showing of disparate impact by the City of New Haven to deliberately set back the cause of admitting more minorities to the workplace.

I think I could have made a showing of disparate impact. The City's failure to do so was most likely premeditated and political, if it wasn't outright legal malpractice.

My point is that the SCOTUS majority did not step into the void to advance equality. It chose instead to put another nail in the coffin of affirmative action.

The majority also hid behind Congress in disclaiming racial preference. Again, disclaiming racial preference may be fine for an elected Congress which answers to a predominantly white electorate. But I don't believe that the Supreme Court should be a rubber stamp for historical racism.

Unless we are saying that the effects of historical racism have been completely purged from American society. Which, as I posit in my OP, we are apparently being asked to accept.

[PassingTimeHere]

52. Disparate impact on such a small group?

We're not talking about the SAT, you know.

I do not think you could have proved disparate impact, and furthermore, I think the SC's decision was very narrow. I don't think this is cause for concern on either side, actually.

[ProgressiveProfessor]

48. It sure took a hit, and the "disproportionate impact" and "fear of being sued" defenses got killed

[defendandprotect]

66. I'd say this case is another argument for the Supreme Court to be televised . . .

so we can all see and hear the arguments --

I don't know if C-span ever played the tape of this one . . .

probably a bit early yet.

[Statistical]

86. SCOTUS is not televised and likely wont be for a while (if ever).

Exact text minutes of this and every oral arguments are available online.

[defendandprotect]

98. C-span has played some tapes of important cases . .. however I think there is

at the least a 2 year delay and maybe more.

However, Supreme Court should be televised and we should all be pushing for that, IMO!


Exact text minutes of this and every oral arguments are available online.

Yes, I've just read the opinions on this case --

See: "For the Record" ... my post near the end of this thread.

Thanks!

[MadBadger]

73. You dont recall this being posted on DU? Are you serious? Is this some kind of joke?

[defendandprotect]

76. For the record . . .

Here's the link

http://www.supremecourtus.gov/opinions/08slipopinion.html

First case listed . . .
Ginsburg's dissent is about 60% of the way down

--------------------------------------------

Kennedy writing for majority pretty much argues against the decision --

The union wanted a test written/oral 60/40 which was not what 2/3rd of fire departments
were doing -- alternative tests were more reliable and relevant.

For the oral . . . note this . . .
IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insis-tence

(because of controversy surrounding previous examinations)

all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs,and chiefs from departments of similar sizes to New Ha-ven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority mem-bers. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistentlyusing checklists of desired criteria.

Of the 77 who took the lieutenant exam - 43 whites/19 AA/15 Hispanic for 8 open positions
the top 10 candidates were eligible for immediate promotion - all 10 were white.
New vacancies would have allowed at least 3 AA candidates to be considered.

Of the 41 who took the captain exam -- 24 whites/8 blacks/8 Hispanics for 7 open captain
positions nine were available for immediate promotion - 7 whites/2 Hispanics.

Based on the test results, the City officials expressed concern that the tests had discriminated against minority candidates.

Under federal law, “a statistical demonstration of disparate impact, standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer-initiated, voluntary remedies even . . . race-conscious remedies.”

Tina Burgett, director of the City’s Department of Human Resources “there is a significant disparate im-pact on these two exams.”

Test questions outdated/not relevant to firefighting practices in New Haven.
Test materials --$500 -- too expensive and too long.

From Ginsburg Dissenting . . .

This is one of the main points to be kept in mind in understanding New Haven's concerns
re a test which delivered such "disparate results."

The city of New Haven (City) was no exception. In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 per-cent of the City’s 502 firefighters. The racial disparity inthe officer ranks was even more pronounced: “f the 107officers in the Department only one was black, and he heldthe lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).

Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representa-tion in the New Haven Fire Department.

----------------------

Here are Ginsburg's main points --

In so holding, the Court pretends that “the City rejected the test results solely because the higher scoring candidates were white.” That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.1

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served as it was in the days of undisguised discrimination—by a fire de-partment in which members of racial and ethnic minori-ties are rarely seen in command positions.

Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92– 238, p. 17 (1971).

New Haven, the record indicates, did not closely con-sider what sort of “practical” examination would “fairlymeasure the relative fitness and capacity of the applicantsto discharge the duties” of a fire officer. Instead, the Citysimply adhered to the testing regime outlined in its two-decades-old contract with the local firefighters’ union:

(IOS), testified during his deposition that the City neverasked whether alternative methods might better measure the qualities of a successful fire officer, including leader-ship skills and command presence.

title VII's disparate impact provision: "The pass rates of minorities fell well below
the 80% standard set by the EEOC to implement the provision."
New Haven thus had cause for concern about the prospect of Title VII litigation and liability.

Officials passed the matter on to the NH Civil Service Board (CSB) which certifies the exams.

(Evidently a heavy emphasis on "apparatus driver" questions were noted which may have disadvantaged test takes who had not had the training or opportunity to drive the apparatus.
Materials costly - $500 -- out of stock/45 day wait - while white firefighters usually had access to the materials thru relatives who had served as firefighters. AA were first generation.
-heavy reliance on job analyses from white firefighters to the testing company)

After giving members of the public a final chance to weigh in, the CSB voted on certification, dividing 2 to 2.B
By rule, the result was noncertification.
Voting no, Com-missioner Webber stated, “I originally was going to vote to certify. . . .
But I’ve heard enough testimony here to give me great doubts about the test itself and . . . some of the procedures. And I believe we can do better.”

Commissioner Tirado likewise concluded that the “flawed” testing process counseled against certification. Id., at A1158.

Chairman Segaloff and Commissioner Caplan voted to certify.

Sotomayor enters the picture:
The District Court explained, “the intent to remedy the disparate impact” of a promotional exam “is not equivalent to an intent to discriminate against non-minority applicants.”

Rejecting petitioners’ pretext argument, the court observed that the exam results were sufficiently skewed “to make out a prima facie case of discrimination” under Title VII’s disparate-impact provision. 554 F. Supp. 2d, at 158.

Had New Haven gone forward with certification and been sued by aggrieved minority test takers, the City would have been forced to defend tests that were presumptively invalid.
And, as the CSB testimony of Hornick and others indicated, overcoming that presumption would have been no easy task. Given Title VII’s preference for voluntary compliance, the court held, New Haven could lawfully discard the disputed exams even if the City had not definitively “pinpointed” the source of the disparity and “had not yet formulated a better selection method.”

Respondents were no doubt conscious of race during their decisionmaking process, the court acknowledged, but this did not mean they had engaged in racially disparate treatment.
The conclusion they had reached and the action thereupon taken were race-neutral in this sense:

“All the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.”

New Haven’s action, which gave no individual a preference, “was ‘simply not analogous to a quota system or a minority set-aside where candidates, on the basis of their race, are not treated uniformly.’”
For these and other reasons, the court also rejected petitioners’ equal protection claim.

Yet the Supreme Court today sets at odds the statute’s core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”—something Title VII’s disparate-treatment provision, generally forbids. This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking.

I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.

The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong-basis-in-evidence standard. When this Court formulates a new legal rule,
the ordinary course is to remand and allow the lower courts to apply the rule in the first instance.See, e.g., Johnson v. California, 543 U. S. 499, 515 (2005); Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982). I see no good reason why the Court fails to follow that course in this case. Indeed, the sole basis for the Court’s peremptory ruling is the demonstrably false pretension that respondents showed “nothing more” than “a signifi-cant statistical disparity.”

Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “ability to lead personnel effectively,maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432. These qualities are not well measured by written tests. Testifying before the CSB, Christopher Hornick, anexam-design expert with more than two decades of rele-vant experience, was emphatic on this point: Leadershipskills, command presence, and the like “could have been identified and evaluated in a much more appropriate way.”

Although compre-hensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assess-ment centers (“simulations of the real world of work”) aspart of their promotion processes. P. Lowry, A Survey of the Assessment Center Process in the Public Sector, 25 Public Personnel Management 307, 315 (1996). That figure represented a marked increase over the previous decade, see ibid., so the percentage today may well be even higher.

Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam.

In sum, the record solidly establishes that the City hadgood cause to fear disparate-impact liability. Moreover, the Court supplies no tenable explanation why the evi-dence of the tests’ multiple deficiencies does not create atleast a triable issue under a strong-basis-in-evidencestandard

As earlier noted, I would not oppose a remand for further proceedings fair to both sides.
It is the Court that has chosen to short-circuit this litigation based on its pretension that the City has shown, and can show, noth-ing more than a statistical disparity.

It is indeed regrettable that the City’s noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of Griggs that groups long denied equal oppor-tunity would not be held back by tests “fair in form, but discriminatory in operation.”

This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court’s judgment, which rests on the false premise that respondents showed “asignificant statistical disparity,” but “nothing more.”

[SoCalDem]

80. RW think tanks have been "working" this angle for decades, and it's finally paid off

It's that same ole black-white. good-evil, yes-no. push-pull mentality they all love and preach so fervently.

Anytime, anyone, anywhere, chooses an employee, they use "a criteria", and by default, have "discriminated" against all the others they did not choose. They have personalized a program that was originated to have a broad-effect, and was aimed at GROUPS of people..not necessarily individuals. When it's honed down to the bone, though, it does become "personal", and that's how they will continue to "win" these cases, until they have wiped away any vestige of what affirmative action was all about.

The college case in Michigan was a prime example....the person who filed suit was "known" because they did not get in, but the person who took that particualr spot was probably not/could not be "known", so the suit becomes a jab at the whole program that so "girevously wounded" this one person who did not get in.

Just like how we will never know the name of the guy who was sent to Viet Nam, because George W did not go... we only know that he should have goone, but did not.. Did "the guy" who went in his place know whose "place" he took? Did he come back alive? No one will ever know.

[AngryAmish]

88. One thing that is missing is "merit" promotion and it's problems

In Chicago there is merit promotion in most city jobs. The problem is then defining merit - too often in Chicago it means those who work for the Machine (of whatever color). It tends to infuriate the rank and file.

So if one is going by the test and the test only it would seem to eliminate a lot of the "merit" promotion of the friends and allies of those in power.

[seaglass]

102. That is true and in CT they have a particular problem with corruption/nepotism

in hiring for civil service jobs when they use subjective criteria.

[mmonk]

89. What is the nature of this test and how does it relate

to one's ability to put out or contain fire?

[Seeking Serenity]

92. Look, just promote the black and hispanic applicants alone

and have done with it.

And when the white men sue for discrimination, have a court look 'em straight in the eye and say, "Sorry, the 14th Amendment and Title VII weren't written for you. You lose."

How about that?

[CTyankee]

93. Might result in a hissy fit on the floor...nt