More sturm and drang (“in which individual subjectivity and, in particular, extremes of emotion [are] given free expression in response to the confines of rationalism...”) on disparate impact. Or more accurately, Sturm and Guinier.
Who knew that Lani Guinier was an expert on firefighting and the methods fire departments should use to staff their leadership ranks? Actually we all should have known, since Harvard law professor Guinier and Columbia law professor Susan Sturm, her co-author of today’s New York Times OpEd on “Trial by Firefighters,” co-authored a book, Who’s Qualified?, that purports to tell all organizations how they should go about hiring and promoting (actually, how they should not — by using tests).
By far the best thing in “Trial by Firefighters” is the opening quote from Karen Torre, the attorney for Frank Ricci and his fellow victorious plaintiffs from the steps of the federal courthouse in New Haven, describing her clients as “‘a symbol’ for millions of Americans who are ‘tired of seeing individual achievement and merit take a back seat to race and ethnicity.’” Indeed. In fact, even Guinier and Sturm agree that Ricci himself, and the principle he represents, has potent symbolic power or they wouldn’t be serving up their shop-worn criticisms of merit, tests, individual achievement, etc.
Their central complaint is with “the capacity of paper-and-pencil tests to gauge a person’s potential on the job.” Moreover, they claim, “[e]xams like the one the New Haven firefighters took are neither designed nor administered to identify the employees most qualified for promotion.”
That is a remarkable claim for which they provide no evidence. Do they really believe such tests are designed and administered (in New Haven’s case, by multiracial teams) to weed out minorities? If not, what do they think such tests are designed and administered to do? They don’t say. They are willing to admit that “[p]eople who excel on such a test may expect to be promoted.” Silly them, since according to our experts on firefighter exams “testing should not be about allocating prizes to winners.” What should it be about? They don’t say.
Here’s what they do say:
New Haven used a multiple-choice test to measure its firefighters’ retention of information from national firefighting textbooks and study guides. Civil service tests like these do not identify people who are best suited for leadership positions. The most important skills of any fire department lieutenant or captain are steady command presence, sound judgment and the ability to make life-or-death decisions under pressure. In a city that is nearly 60 percent black and Latino, the ability to promote cross-racial harmony under stress is also crucial.
These skills are not well measured by tests that reward memorization and ask irrelevant questions like whether it is best to approach a particular emergency from uptown or downtown even when the city isn’t oriented that way. The Civil Service Board in New Haven declined to certify the test not only because of concerns about difference in scores between black and white firefighters but also because it failed to assess qualities essential for firefighting.
Note well that even Guinier and Sturm admit that at least part of the Board’s motivation was race based. And if they have an opinion about why New Haven refused the test-maker’s offer to provide validation for the test after it was challenged, they don’t offer it here. Perhaps in their view there’s no such thing as a valid test.
Also left unexplained is just how a promotion system grounded in politically demanded racial proportionality (see Justice Alito’s concurring opinion for chapter and verse) is supposed to promote “cross-racial harmony.” It obviously does exactly the opposite. In an emergency sensible people no more want to depend on a fireman promoted to satisfy shrill political demands for racial proportionality than they do on a physician or airline pilot. Indeed, a recent Quinnipiac University poll (discussed here) found, according to Peter Brown, assistant director of Quinnipiac’s polling institute, that
[t]here is very strong opposition to Judge Sonia Sotomayor’s position on the New Haven firefighters’ case. Even Democrats say 59 - 27 percent that New Haven was wrong to throw out the promotional exam because no black firefighters scored well enough to be promoted.
Finally, let’s say, for the sake of argument, that New Haven’s “paper and pencil” test is as poorly designed, administered, and generally useless as Guinier and Sturm assert (again, with no evidence), that the ability to remember “information from national firefighting textbooks and study guides” has no bearing on leadership potential in a fire department. And let’s also not dwell on the fact that 40% of this “paper and pencil” test was oral, something they acknowledge only in passing well into the article.
Even if we grant all that, however, it’s still not clear exactly why, how, or where this promotion exam discriminated against minority test takers. Sturm and Guinier’s feeble attempt at explanation sounds more like satire than serous analysis:
... many fire departments with a history of discrimination, like New Haven’s, still stack the deck in favor of candidates who have relationships to people already in the fire department. Those without $500 for the study materials or a relative or friend from whom they might borrow the books were put at a disadvantage.
Moreover, it was the firefighters union — which sided with the white firefighters in the Supreme Court — that negotiated the contractual mandate giving disproportionate weight to the multiple-choice test. Those negotiations occurred two decades ago when the leadership of the department was virtually all white.
Are we really supposed to believe that the study materials were not available to minority firemen? Is there evidence in the record of any fireman claiming “I would have studied as hard as Frank Ricci, but I couldn’t find the study materials?” I don’t think so.
In fact, there is only one thing remotely resembling evidence that the test was discriminatory, and that is that not enough minorities passed with high enough scores to be promoted. Of course, for Sturm, Guinier, and their fellow devotees of disparate impact, that’s all the “evidence” they need. In fact, for them differential pass rate is not even evidence of discrimination, it’s proof.
Sturm and Guinier note, accurately enough, that “[n]o one has a proprietary right to a particular open job, even if that person worked hard preparing for a test,” and that “no one was promoted instead of the white firefighters.” True, but their conclusion — no harm, no foul — is as obnoxious as it is irrelevant. The fact that you do not have a right to an open job does not mean that you can be turned down for that job because of your race, even if no one else was hired instead of you. As I argued here,
the city’s argument that its decision was not discriminatory because no one was promoted has a foul smell to it. It reeks of the old segregationist argument that closing a municipal swimming pool to avoid integration and banning interracial marriages are not discriminatory because the pool closing and the interracial marriage ban apply equally to all races.
What the Ricci case reveals for all to see (or all who are not hardcore liberals) is that a profound chasm has opened up between the very idea of civil rights held by the majority of Americans and the idea, almost its opposite, still tenaciously embraced by hardcore liberals; Democratic office holders; elites in universities, editorial offices, large corporations; and civil rights leaders (but a smaller number of their followers). Most Americans accept the “without regard” principle of official colorblindness as a fundamental value of our society, a value enshrined in the 14th Amendment and embodied in various civil rights laws that, properly interpreted, prohibit discrimination against or preferential treatment of anyone on the basis of race.
Liberals et al., by contrast, have rejected the “without regard” principle and the colorblind version of civil rights that it requires. In its place they have substituted a new (but not improved) version of civil rights that would require both private and public organizations to engage in “race conscious” behavior (in practice, favor preferred minorities over whites and Asians) in pursuit of more and more “diversity,” an ideal that holds up racial proportionality as the ultimate measure of fairness.
Just as liberals argue that the “true meaning” of Brown v. Board of Education is not to prohibit racial discrimination but to require racial integration (see my long discussion here, among other places), they “construe” the Civil Rights Act’s protection of an individual right to be free from discrimination based on race as a grant of power to public and private institutions to use race, in the name of promoting “diversity,” to distribute benefits and burdens based on race. (And they have the nerve to accuse us of stealing civil rights, turning it on its head, etc.!) Their preferred method of accomplishing this profound reversal has been the doctrine of “disparate impact,” which regards anything less than racial proportionality as suspect and in need of extensive and often difficult to provide justification. (How could Duke Power, or any employer, prove that a high school diploma is a reasonable proxy for self-discipline, hard work, and at least minimal knowledge of math and English?)
The Ricci case hit a nerve because it brought this conflict of visions out in the open and revealed it in sharp relief. For the most part “diversity” has been imposed behind closed doors — admissions offices, employment offices of large corporations, judicial chambers — where most people were neither focused nor engaged. Frank Ricci, however, did engage the public, and I believe it did not like what it saw. Since the Supremes based their holding on an interpretation of a statute, Congress can overturn it, as indeed it overturned a similar opinion in 1991 when Republicans in Congress lacked the backbone to block it and the Republican in the White House, Bush I, lacked the backbone (or other bodily parts) to veto it.
Maybe the Democrats in Congress will try to overturn Ricci, as they overturned Wards Cove in 1991. But do they really want to identify with the argument of Lani Guinier et al. (and campaign on it in 2010), that Frank Ricci’s civil rights were not violated when the city of New Haven denied him a promotion he had earned because of his race? Does Eric Holder really want an extended national conversation about that question?
I hope so.