A Rickety Argument In Ricci

rick⋅et⋅y

1. likely to fall or collapse; shaky…

2. feeble in the joints; tottering; infirm….

Around three months ago I discussed, here, an important case that the Supreme Court will hear next week, Ricci v. DeStefano. That post linked a number of more thorough discussions by others, and because the case is so important you should read (or re-read) those linked analyses. Briefly, the case involves a complaint by 17 white and one Hispanic firemen that the New Haven Fire Department set aside the results of a promotional exam because it didn’t like the racial distribution of those would have been promoted if the results had been honored (too many whites, not enough blacks).

I return to Ricci now because of a New York Times article last week (sorry, just now getting to it) noticing its importance, and especially because of its report of U.S. District Judge Janet Bond Arterton’s reasoning in her decision rejecting the firemen’s complaint.

In 2006, Judge Janet Bond Arterton of the Federal District Court [in New Haven, nominated by President Clinton in 1995] ruled that the city had not discriminated against the white firefighters. Since no one was promoted, Judge Arterton said, no one was harmed.

True, she wrote, “a jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted.”

But the city’s motives were lawful, Judge Arterton said. They included fear of public criticism, the possibility of “lawsuits from minority applicants that, for political reasons, the city did not want to defend” and a desire to promote “diversity in the Fire Department” and “managerial role models for aspiring firefighters.”

Judge Arterton ruled that city officials were not required to abide by the test results even though “they cannot pinpoint its deficiency explaining its disparate impact….”

Amazing! So, according to Judge [Artless] Arterton it is lawful for public agencies to adopt race-based policies if

a) they fear not doing so will lead to “public criticism”;

b) “for political reasons” they do not “want to defend” lawsuits by minorities who want preferential treatment; but

c) they have no “political reasons” that inhibit them from defending lawsuits by citizens who want to be treated without regard to their race.

Even I, jaded as I am about these matters and accustomed as I am to all manner of liberal claptrap, found it hard to believe that a federal judge would actually write these things in an opinion.

Silly me. Take a look at Judge Arterton’s opinion (if you have a strong stomach), and you’ll find that she really did say all those things, and more. For example, she also freely acknowledged that

Plaintiffs’ evidence – and defendants’ own arguments – show that the City’s reasons for advocating non-certification [of the test results] were related to the racial distribution of the results….

Nevertheless, she regard the city’s race-based decision as “race-neutral.”

Thus, while the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: 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.

I’ve written before on a number of occasions about the irony, or something (disgusting hypocrisy?), of today’s preferentialist liberals unabashedly repeating the arguments of the majority opinion in Plessy v. Ferguson, i.e. rejecting Justice Harlan’s assertion that our Constitution is colorblind. (See, for example, here, here, here, here, here, and here.) Justice Arterton’s opinion in Ricci did something very similar: her reasoning, such as it was, echoes the reasoning in the 1971 case of Palmer v. Thompson, a case the civil rights movement loves to loathe, and if upheld it would go a long way toward undermining one of the pillars of modern civil rights law, the 1976 case of Washington v. Davis, as Ilya Somin explained in a June 2008 post:

A crucial issue raised by the case is the question of the range of situations whether a “race-neutral” denial of opportunities by government counts as an Equal Protection Clause violation if the government’s action was motivated by racial considerations….

This situation is somewhat similar to the 1971 case of Palmer v. Thompson, where a closely divided Supreme Court refused to invalidate a Mississippi city’s decision to shut down several public swimming pools rather than allow them to be racially integrated (as a previous court order required). The Court reasoned that the city was not required to provide public swimming pools in the first place, and that the decision to shut down the pools did not affect blacks “differently from whites.” In Ricci, New Haven likewise is not required to provide exam-based promotions to firefighters in the first place, and it could be argued that its action affects all racial groups equally in the sense that firefighters of all races are now ineligible to gain promotion on the basis of the exam in question.

However, the public employment context differs from the public service context in a number of ways. In the famous 1976 case of Washington v. Davis (involving police promotions in the District of Columbia), the Court held that a race-neutral promotion system could be unconstitutional if plaintiffs could prove that it had been enacted for the purpose of disadvantaging particular racial groups. But it’s hard to say to what extent this principle applies to a situation where a promotion system has been scrapped for racial reasons, as opposed to instituted for them.

Somin also notes, for whatever it may be worth, a difference between the New Haven Fire Department refusing to honor the results of its firefighters’ exam and Jackson, Mississippi’s, closing its swimming pools: in Ricci, as Somin pointed out,

the city acted as it did precisely because it knew that white (and a few Hispanic) firefighters would otherwise gain promotion, while no black ones would. By contrast, in Palmer it was reasonable for the Supreme Court to assume that both black and white residents of the city would have used the swimming pools had they not been shut down.

In addition, Judge Arterton’s opinion will no doubt remind others, as it reminds me, of the argument that the Supreme Court rejected in Loving v. Virginia, that Virginia’s law prohibiting interracial marriage law was not a violation of equal protection because it non-discriminatorily prevented both blacks and whites, equally, from marrying each other.

But wait; there’s more! In addition to the reasons I’ve quoted above, Judge Arterton also argued that New Haven’s refusal to promote the white and Hispanic firefighters who passed the promotional exam was legal because promoting them “would undermine [the city’s] goal of diversity in the Fire Department.”

Now, as we know all too well, the Supremes decided in Grutter that on occasion “diversity” can justify race-based policies in higher education. But what, we are entitled to wonder, can it contribute to the workings of a fire department?

Well, wonder no more, for the City of New Haven produced an expert witness at trial, Dr. Janet Helms, a professor of counseling psychology and the Director of the Institute for the Study and Promotion of Race and Culture at Boston College, who explained it for us, and obviously to Judge Arterton’s satisfaction.

Since you might not believe any summary I could write, I quote some passages from Judge Arterton’s opinion based on Dr. Helms’ expert opinion [Emphasis added; citations omitted]:

…. Her area of expertise “is not with firefighters per se but is more in the general area of how race and culture influence test performance more generally.” She did not examine the specific tests at issue. However, she offered several potential explanations for racially disparate impact on the tests. First, “[w]e know for a fact that regardless of what kind of written test we give in this country that we can just about predict how many people will pass who are members of underrepresented groups. And your data are not that inconsistent with what predictions would say were the case.”

Now, unless I’m missing something, this “potential explanation” of why blacks did worse on the New Haven tests (which the witness had not examined) is … that blacks do worse on tests, “regardless of what kind of written test” is given. I’m sure that expert opinion was helpful to Judge Arterton.

Second, Dr. Helms suggested that because 67% of the respondents in the JAQ [Job Analysis Questionnaire]survey were white, the questions may have been skewed toward their job knowledge, as “most of the literature on firefighters show that the different [racial and gender] groups perform the job differently.”

So, according to the expert Dr. Helms, there really are “diverse” ways to fight fires, with women and blacks having their own distinctive fire-fighting ways. Who knew? What? You think I’m being hyperbolic? Read on.

Relying on information she had read in newspaper accounts of the situation in New Haven, she stated that the difference in performance may have been due to differences in opportunities for training and “informal mentoring” available to minorities. As general concerns, Dr. Helms mentioned that test takers may score lower if they are expected not to perform well, or if tests focus on “traditional ways of doing the job and the test-taker, in fact, uses innovative approaches.”

Well, of course Dr. Helms’s concerns are “general,” since she had not examined the tests at issue, and the only thing she knew about “the situation in New Haven” was what “she had read in newspaper accounts.” Some expert. Still, she returns here to the suggestion (since she has not seen the tests and has no data it can only be a suggestion) that the failing test takers failed because they reject “traditional ways of doing the job” and instead rely on more “innovative approaches” than the tradition-bound fuddy-duddies who did well on the tests.

Finally, one question I would like to ask Dr. Helms: since she “mentioned that test takers may score lower if they are expected not to perform well,” and since she obviously did not expect them to perform well, testifying, as we saw above, that blacks don’t do well on tests, that “[w]e know for a fact that regardless of what kind of written test we give in this country that we can just about predict how many people will pass who are members of underrepresented groups,” does she accept any personal responsibility, or responsibility for her profession, for these low scores?