Tuesday, June 30, 2009

Veni, Vedi, Ricci

It gives us some great deal of pleasure to see that SCOTUS has ruled in favor of firefighter Frank Ricci in the now famous New Have case. What's interesting to us, is what Justice Kennedy has written here on the issue of disparate impacts: "The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.”

What this means is that New Haven never argued that the test was unfair, only that the results weren't what they hoped for. Which, if this is going to be a criteria for sh*t canning a test, means that municipalities will have to continue to test until they get the "right" results.

Having represented firefighters in the past, we know just how important their public safety efforts are-and how complicated and dangerous as well. If the test was constructed fairly, and in a race neutral way-as Kennedy feels it was-than to jettison the results, or modify the test to make it more accommodating somehow to the examinationally challenged, is a direct threat to, not only fairness and a level playing field, but to the public safety as well.

As Justice Kennedy points out: "If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations."

But, as one commenter over at the Atlantic points out, the racialists want to do just that-keep up the testing in hopes of achieving the "scientifically desirable" results: "Maybe I bring my scientist-filter into everything, but it reminds me of validating scientific results. If you run an experiment and get consistent results that weren't what your model predicted, it's integral to the scientific process to comb through your experiment (and have others do the same) to make sure there weren't outside factors influencing the experiment. You want to make sure you have the most correct data possible before drawing conclusions. So in this case, if the city comes up with a different test that gets the same results on the same group of people, then great - no worries about bias, and it really was merit-based. And if not, they've discovered a flaw in their system that was invalidating their results.""

But the "model" predicted race neutrality; and that doesn't mean that more minorities will score high enough to be promoted, only that the test in question was fair. To some folks, however, the mere fact that minorities scored lower than other applicants means that the test, ipso facto, was unfair-and needed to be thrown out.

As the lawyer for Ricci pointed out to the District Court, being a firefighter isn't the same as being a sanitation worker-there are real skills and safety issues that need be given proper deference. And, as Stuart Taylor has written, throwing out the test has real world consequences for those who did score higher: "The disparate-impact dynamic has the benefit of expanding opportunities for preferred minorities. But it also has great costs. It is unjust to high-scoring white and Asian workers; it has greatly eroded the anti-discrimination principle; and it downgrades incentives for students and workers to study and learn -- both in school and in rigorous test-preparation courses such as the one that helped some New Haven firefighters improve their skills and do well on the test."

So, by all means, expand opportunities and training for those who want to become firefighters. Give those who have been excluded, for whatever reason, a boost up in this way. Just don't water down a test that determines who will be racing up that ladder should, God forbid, someone you love is threatened with a horrible death.