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.
With all due respect to Ricci and the other firefighters that were harmed, the facts of this case are not as cut and dried as conservatives would like to make them out to be.
First, the city of New Haven was in an impossible situation. If you go by the results of the test, you get sued for discrimination. If you don’t, you get sued for reverse discrimination. Now take off your ideological blinders and acknowledge this: affirmative action is legal. It was affirmed in Grutter vs. Bollinger in 2003 and was upheld in a series of rulings prior, including Bakke. The notion that governments should not enact policies that have “disparate impact” is legal and has been enshrined and protected by several court decisions too.
So while conservatives love to fire up the echo chamber of the blogosphere, airwaves etc. claiming that people who support and implement these types of policies are racists and so forth, you ignore what the law, court rulings, precedents actually are. And you are perfectly fine to do that. But people who work in government agencies and other areas do not have this freedom. It is their job to follow the law, follow court decisions, and avoid lawsuits that will tie up millions of dollars and thousands of man hours. After all, even this case is not over. Despite conservatives dancing around and claiming a total victory on this, the truth is that the Supreme Court merely kicked this case back down for a retrial, which of course will wind its way back through the federal courts, taking still more years. So if you are going to get sued either way, then you take the position that best reflects the current law, and based on the last major Supreme Court decisions, including Grutter vs. Bollinger in 2003, New Haven acted the way they did. Now the person who wrote the majority opinion on Grutter vs. Bollinger: Sandra Day O’Connor. Had she still been on the court instead of John Roberts, Ricci almost certainly would have lost.
Second – and this is the tough one – at some point conservatives have to deal with the implications of this case the base level. Bottom line: not a single black firefighter passed this test, which means that not a single black firefighter was going to be promoted. And are conservatives ok with this? This is not like the (somewhat intellectually dishonest) debate over affirmative action in college admissions, where the kid who doesn’t get into UCLA can go to Fresno State and do just fine for himself, or the kid who can’t get into medical school can just go get his M.B.A. Instead, this is telling blacks that are already working as firefighters – which is a very difficult field to get into and an even more difficult one to stay in – that they have to accept having no real shot at career advancement even if they invest years of exemplary service. So … what are conservatives prepared to tell such people? Give me the conservative argument for why a black person should pursue a career in firefighting under those conditions.
And please, spare me the “merit” nonsense. This isn’t about how a person actually performs out in the field as a firefighter, it is a test. Anyone who has ever worked on a real job – which firefighting most certainly is – can verify that it is far more likely that a lesser qualified person – regardless of race – will be promoted as a result of passing the test while a more qualified person is held back.
The conservatives cheering this ruling are almost certainly the ones who have never had to be managers of a workplace where none of the blacks could get promotions because they couldn’t pass the test, and you know what I absolutely guarantee that none of them are lining up to be the next one to do that, to be the one that has to explain this policy to their hard working black employees.
Well, folks who run the city of New Haven DO have to deal with it. It is a city of 846,000 that is 13% black. When you consider that blacks are heavily disproportionately represented in government jobs, the most conservative of estimates would place New Haven’s workforce as being 20% black, and that number is probably far higher. Again, you go apply to be a manager in New Haven (or anywhere else) where there is a sizable black population where promotions are based on a test that no blacks pass. You might protest “I’d never take that job!” (and I wouldn’t be surprised, because conservatives hold government jobs in low esteem) but someone has to and someone is going to, and that’s the point.
Conservative echo chamber diatribes are nice, but at some point you have to live in the real world here, including actual workplaces where human people have to manage and coexist with other human beings. That’s why it’s not so easy to reduce every single affirmative action case to some wealthy privileged child of an NAACP leader with a victimization complex who feels that he is entitled to your kid’s spot at Harvard so he can become a civil rights industry who makes his money suing your kid’s business for discriminating against Martians. Instead, it is a complex world out there that needs real solutions that conservatives aren’t providing.
Now if conservatives believe that these tests are fine and fair and that the reason why blacks can’t pass them is because of either culture (blacks are lazy) or genetics (blacks have lower I.Q.s’) then conservatives need to come out and say it. (Again, this is not like the affirmative action in education debate where conservatives can place all the blame on failing schools, social welfare, and black family dysfunction, but rather this is a case of blacks who have avoided those pathologies and succeeded in the very difficult task of becoming firemen, which along with the military and police officers are the only government employees that conservatives actually like.) Otherwise, when affirmative action is finally ended this nation is going to have real problems on its hands.
Gerald — the racial preferences are legal rulings you cite, if you recall, relate only to college admissions…. and the undergrad admissions racial preferences were struck down.
That’s not much of a leg to stand on. The “diversity” standard was considered a legit cover for the educational benefits of the non-preferred [try to make sense out of that], but I haven’t heard that principle being extended to employment.
The problem is that the more predictive the test the greater the disparate impact. This is because groups differ on average by 1 std deviation on IQ.
This dilemma is discussed here by Professor Linda Gottfredson, in the context of a new exam for the Nassau County Police:
“Research in the last two decades helps to explain why. The research has provided a fairly clear picture of what kinds of worker traits and aptitudes predict different aspects of job performance and how those traits differ across demographic subgroups (e.g., see the review by Russell, Reynolds, & Campbell, 1994). It has thus been able to explain why some selection devices have more validity or disparate impact than others, and begun to chart how much of both different selection batteries produce.
The major legal dilemma in selection is that the best overall predictors of job performance, namely, cognitive tests, have the most disparate impact on racial-ethnic minorities. Their considerable disparate impact is not due to any imperfections in the tests. Rather, it is due to the tests’ measuring essential skills and abilities that happen not to be distributed equally among groups (Schmidt, 1988). Those differences currently are large enough to cause a major problem. U.S. Department of Education literacy surveys show, for example, that black college graduates, on the average, exhibit the cognitive skill levels of white high school graduates without any college (Kirsch, Jungeblut, & Kolstad, 1993, p. 127).
This dilemma means that the disparate impact of cognitive tests can be reduced only by reducing their ability to predict job performance. In fact, this problem is so well known among personnel selection professionals that there is considerable research estimating how much productivity is lost by reducing the impact of cognitive tests by different degrees (e.g., Hartigan & Wigdor, 1989; Hunter, Schmidt, & Rauschenberger, 1984; Wigdor & Hartigan, 1988; see also Brody, this issue, for a more general discussion of the same dilemma). There are two general methods of reducing the impact of cognitive tests: lower the hiring standards only for the lower-scoring groups, or lower standards for all races and ethnicities. Double standards lower productivity less than low common standards because they maintain standards for the majority of workers. Their drawbacks are that they are obviously race-conscious and that they create disparate impact in future promotions. In contrast, low common standards have the virtue of being race-neutral, but they devastate workforce performance across the board.”
http://www.ipacweb.org/files/nassau/gottfredson3.html
Gerald, you wrote: “After all, even this case is not over. Despite conservatives dancing around and claiming a total victory on this, the truth is that the Supreme Court merely kicked this case back down for a retrial, which of course will wind its way back through the federal courts, taking still more years.”
This case was not remanded for a retrial. You lose credibility points for your inability to read the holding of this case.
Secondly, your point about the sanctity of prior decisions — were you disappointed when Brown v. Board of Education disrupted a whole line of cases upholding ‘separate but equal’ education?
The only difference between white supremicists and ‘diversity supremicists’ like yourself, is that you disagree on who may be screwed and who shall be favored. Neither group wants equal treatment for individuals regardless of their race. While people like you want to design the demographics of our institutions so that it soothes your fetish for proportionality, all we want is that every single individual is treated fairly, with utter disregard to the cumnulative complexion of any institution.
When you are done calculating the best demographics for the New Haven fire department, let us know what the appropriate racial composition should be for the Harlem Globetrotters.
Those who try to delegitimize the test, box themselves into a corner. If the test is unfair because it overemphasizes “memorization” it only descriminates against those who lack the ability to memorize. To elevate this flaw to an odious racial disadvantage requires the assertion that some race is better than another race in the skill of memorization. That blacks aren’t as good as whites at memorization.
While the “diversity” theory presumes inherent racial differences, it isn’t particularly flattering to need to claim that the test results possess a racial disparity because blacks aren’t as good as whites at a particular skill.
If a test is unfair because it overemphasizes a particular skill, it isn’t a victory to assert that the skill in question has disparate racial tendancies. Where is the sympathy to assert that a test overemphasizes memorization and blacks aren’t as good at that skill? It’s cutting off the nose to spite the face.