Reverse What?

As the SCOTUS(Supreme Court of the United States) wrapped up its session before taking a summer hiatus and the Sotomayor fracas heats up, it issued a couple of pretty cool opinions. In 'Safford Unified School District v. Redding' the court held that strip searching a 13 year old girl to find prescription strength ibuprofen based on one other teen's testimony was unconstitutional. I am glad the SCOTUS had to be brought into that one. Was there nobody in the principal's office saying 'Should we really be pantsing this girl to find headache medicine?' No way that could have been decided in a lower court? I guess school kids do have some limited rights, after all. They can still be tested for steroids, though! YAY!

What I want to really talk about, though, is a much more controversial decision that, in my review, is not nearly as clear cut and therefore lends itself well to our oft neglected forum. The case I bring before you, ladies and gentlemen, is Ricci v. DeStefano. No, this case does not involve the mob or a secret recipe for Ragu(just what IS in there?). Ricci v. DeStefano is the horribly dubbed 'reverse discrimination' case.

First, I am going to attack that phrase: there is NO such thing as reverse discrimination. Unless you are talking about not discriminating, in which case that is reverse discrimination, I guess. Discrimination is not directional. It is the subjugation/dismissal/overlooking of one group in favor of another based on arbitrary criteria. How do you reverse that? It ruffles my tail feathers when that phrase gets bandied about. And I am part of the only group that can be 'reverse discriminated' against! I know, I know. Semantics. But I digress.

R v. S is the romantic tale of the New Haven Fire Department and its desire to fill vacant officer positions within its ranks. To do so they created a test in 2003 for their firefighters to see if they were the right stuff for captaincy or lieutenancy. One hundred and eighteen sat for the exam, 56 passed - 41 white, 9 black, 6 hispanic. This in a community that is 40% black and 20 % hispanic. The firefighter community is still below those level of diversity. I think the image below goes a long way to explain the results: if you cannot stay awake at a press conference about the decision, can we expect you to have studied hard enough to pass?

Is this racist?

Anyway, when the results came in New Haven, with a proud history of under-representing minorities in its FD, withheld certifying the results to examine the test to see if it was, by its very design, discriminatory. They did not have these concerns when they drafted the exam, a 60% written/40% oral design, which was essentially approved by the board and the firefighters union, prepared by a third party contractor and reviewed by an independent firefighting consultant. The sole reason for reviewing the exam was the appearance of discrimination based on results and wanting to avoid a possible lawsuit because of it. Through five hearings and much testimony the board split 2-2 on whether to certify, with one abstaining. That meant they could not certify.

The result: those 19 firefighters who scored high enough to be considered for promotion, 17 white and 2 hispanic, wasted months and hundreds of dollars studying for an exam they were told would determine if they would be promoted. Bring on the law suit.

SCOTUS ruled in favor of those 19 in a close 5-4 decision. Predictably, all five in favor of the petitioners were white male Republicans: Kennedy, Roberts, Scalia, Alito and Thomas - bazing! Ginsburg, Stevens, Breyer and the outgoing Souter dissented.

What SCOTUS was deciding on was Title VII of the Civil Rights Act of 1964. (How odd to think that I was born a scant 14 years after this country officially decided we are truly all 'created equal.') Title VII has two parts. The obvious part "prohibits the intentional acts of employment discrimination based on race, color, religion, sex and national origin", referred to as 'disparate treatment.' Nowhere in there is protection for the body art or homosexual communities. I guess your tattoos have to be Samoan or Maori tribal tats - not those douchey arm bands. The second part prohibits "policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities," or 'disparate impact.' In question here is the second part, disparate impact. Nobody is contending the test was set up to discriminate, only that because the test results were so lopsided it could be open to lawsuit. It was the threat of lawsuit, not any internal strife that what they did was discriminatory, that led to the non-certification of the exam. The majority decided that this threat alone could not be enough to justify discriminating against those that passed the exam. They found the process observed to create the exam was sufficient to expect a legit result. Even during the review nobody said 'this test is going to discriminate.' There were some who said there are better designs, but none that said what New Haven did was blatantly wrong. Based on those points, the court reversed the lower court decisions and ruled that New Haven did not have a firm basis to assume it would have faced a lawsuit for discrimination, pursuant to part two of Title VII, thereby justifiably not certifying the results. By not certifying, they essentially ran afoul of part one of Title VII. It was only because the passing group was not sufficiently minority that the test was not certified.

In dissention, Ginsburg, et al., make some very good points. The dissenter's strongest points also deal with the 'disparate impact' portion of Title VII. Essentially, if you have a policy or practice that has an adverse effect, even if not intentional, you must make sure that a reasonable alternative to the practice in question did not exist that would not have produced the discriminatory results. Ginsburg focused on the testimonies during New Haven's own hearings from other FDs that ran their promotion tests differently. For every expert that said there was nothing 'wrong' with New Haven's test, another expert was found that said "I do it such a way and the results are not adverse like yours." In light of this, the dissenters felt that there was adequate reason for New Haven to not certify the test because the results actually did violate part two of Title VII. It was not simply, as the majority states, "because the higher scoring candidates were white." In addition, Ginsburg stressed that "[i]n assessing claims of race discrimination, '[c]ontext matters.'" If you look at New Haven's history, and that of most of our nation's FDs, there is a long history of discrimination. As I mentioned above, the current New Haven FD make up is still not in line with the population at large. The lower ranks of fighters in the city are 30% black and 16% hispanic. Close, but not quite. Officers are even more lopsided, with only 9% of each black and hispanic fighters at captain or higher. In this context, the results of the test take on a different flavor.

After reading a good portion of the decision, not all mind you, I am still left wondering if they made the right decision for this particular case. You can find it here if you want to peruse. As is often the case with 5-4 decisions, the answer is not clear cut. Heck, I think with most discrimination cases these days the answers are not going to be clear cut. I do feel the majority, despite the many good points Ginsburg raises in writing the dissent, got it right in general, if only for one simple reason: lawsuits. Do we really want to live in a country where the result of every exam, every promotional review is in doubt and/or subject to potential discrimination lawsuits if one group does not like the results? Many of you reading this remember taking the SATs back in the day. I think we were one of the first classes to be given the 'multicultural' SAT because of complaints that because minority children did worse than whites on the test there must be a problem with how it was written. Personally, I have NO clue how reading comprehension and math has a cultural underpinning. Perhaps the schools that poor and minority children go to are not as good, but that is not an issue with the SAT. Cover up the symptom, don't treat the disorder. I remember distinctly that there were a few reading comprehension passages about American Indians and Mexicans. It did not make it harder for me, as a whitey white white French Canadian American, to comprehend the passage. Nor do I think a Mexican American student scored 100 points higher because the character's name was Jose. By taking an otherwise decently designed exam and subjecting it to this kind of standard or have it face lawsuits, you compromise the entire process.

We are the first generation that was expected to attend and complete a four year college education. Each generation into our history had fewer and fewer that completed, let alone attended, university. As a result, most tests of IQ, whatever you want to say about IQ, show a trend toward higher IQ in each generation. Thankfully, they do not test 'Where is Washington DC?' on IQ tests. Many of the black and hispanic firefighters were first generation firefighters. Would we not expect them to perform a little less well than a white firefighter that had an uncle and father on the force to use as a resource? That difference, however, will disappear a little bit as generations pass. You cannot legislate or litigate that rate any faster than the natural order. Therefore, you have to say 'enough is enough' at some point. Kennedy and the majority did just that in Ricci v. DeStefano. They saw a city being forced into an action because an innocent result from a test they administered. Their decision adversely affected firefighters who would have reasonably expected to received promotions. New Haven did not think their test was bad - only that others would think they were discriminating against minorities. Should we allow fear of litigation motivate our decisions?

So, let's see what you think. Our panel consists of what? Five white men, one white woman and one mixed race woman. We should get a good cross section of opinions here. I do fear that this website will be blocked pursuant to part one of Title VII, though.