Rickety Ricci II

Last week I discussed A Rickety Argument In Ricci, referring to Ricci v. DeStefano, a case the Supreme Court will hear tomorrow involving, as I noted in my post, “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 who would have been promoted if the results had been honored (too many whites, not enough blacks).”

Now comes Joan Biskupic today in USA Today with a preview of the case, and others the Supremes will hear dealing with race. The Obama administration, she notes, has taken a seemingly more measured approach than some of us might have feared.

Justice Department lawyers say the city acted properly to avoid violating the 1964 Civil Rights Act, which restricts tests that don’t appear to discriminate but have a disproportionate racial impact. Yet, the Justice Department also says the case should be sent back for more fact-finding. It says the white firefighters’ claims that they were intentionally discriminated against when the results were thrown out were not fully aired in lower courts.

Think about that standard for minute. On this view, the “disparate impact” theory of discrimination prohibits measures that are not discriminatory (“tests that don’t appear to discriminate”). It thus would seem to require that any test or other selection method must result in a proportionate racial pass rate.

And what of the New Haven test itself? According to a recent article on Fox News,

The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent….

The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.

But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.

So, even after receiving results that it did not like, the city found that the test was not necessarily flawed, only “potentially flawed.” But even if we assume those potential flaws referred to above were real, in what sense does weighing “memorization” too much and “testing for leadership in emergency conditions” too little amount to discrimination against blacks?

Does the city maintain that blacks are memory-impaired? That they are disproportionately endowed with leadership skills? If not, even with its alleged flaws how was the test discriminatory? And if it wasn’t discriminatory, what is the basis for reneging on the city’s implicit promise to promote those who did well on it?

According to the USA Today article linked above,

Frank Ricci, the white lead challenger in the firefighters’ lawsuit, says in court filings that he overcame dyslexia and paid to convert study materials to audio recordings to prepare for the test. His lawyers say canceling the promotions because of how blacks fared amounts to “overt racial balancing, de facto quotas and blunt race politics in government hiring.”

New Haven Mayor John DeStefano and other city officials say they wanted to avoid claims of indirect discrimination against minorities.

Those officials obviously had no qualms about inviting claims of direct discrimination by whites and Hispanics. USA Today ’s sub-head for this section of its article is “‘Reverse’ Discrimination,” but there’s noting “reverse” about it.