Wednesday, October 27, 2010

Injudicious Oversight

We have been ragging on the injudicious oversight of Judge Nicholal Garaufis on the hiring practices of the FDNY-and now Heather McDonald at the City Journal weighs in with an in-depth critique of the judge's lack of any real understanding of just what is going on. It turns out, that the only real evidence of bias is in the Garufis' rulings: "A fierce constitutional battle is being waged between an out-of-control federal judge determined to impose racial quotas on New York City’s fire department and Mayor Michael Bloomberg, equally determined to resist race-based hiring. U.S. District Judge Nicholas Garaufis appointed himself the city’s de facto fire commissioner last week by enjoining the department from hiring any new firefighters without his approval—and he will give his approval only to the racial hiring schemes he has already tried to foist on the department."

 What McDonald's analysis reveals is a judge out of his intellectual depth when dealing with key constitutional issues: "Judge Garaufis’s rulings have been capricious and biased, creating new law while ignoring facts that undercut his radical new doctrines. And Garaufis’s ultimate goal—to craft a future hiring process based on racial considerations—would put the city’s residents at risk by making skin color as important a qualification for firefighters as actual preparedness."

The underpinning for the judge's judgments, as it were, is the notion of disparate impact-the sheer absence of  "enough" minority firefighters when seen in proportion to the city's overall population: "Under the misguided legal theory of “disparate impact,” however, an employer can be found guilty of discrimination simply if minority applicants don’t score as well as whites on a job test. Once an employment test is shown to have a lower black pass rate, an army of testing experts hired by the plaintiffs descends on the courtroom waving “coefficient alphas” and “construct- and criterion-related validation methodologies” to nitpick the suspect test to death and to claim that it measures skills (such as reading comprehension) that are not relevant to the job while not measuring skills (such as cooperativeness or persistence) that are."

Oh, good grief! What this means is that the onus is always on the employer-and intent is not the issue. This can lead to a great deal of mischief-the one thing that Garaufis apparently is good at. But McDonald puts her finger on the central fallacy that we have already pointed out: "Disparate-impact jurisprudence rests on a massive lie: that blacks and whites would score identically on tests of cognitive ability, absent a biased test design. Given the racial disparities in average cognitive skills—black 12th-graders read, on average, at the level of white eighth-graders—it is impossible to design a test measuring cognitive ability that will not have a lower black pass rate. Garaufis, however, rejects this reality; he has sneered at the city’s suggestion that the differences in scores between white, black, and Hispanic fire department applicants reflect differences in “capability and preparedness,” calling that explanation “dubious.”

Joel Klein better watch out, using the judge's biased world view, the entire school testing regime is likely to be declared null and void because of the disparate racial gap-the only thing dubious here is Garaufis' good faith and intellect: "Not surprisingly, then, in July 2009, Garaufis agreed with the plaintiffs’ charge that the city was guilty of disparate-impact discrimination, since the black pass rate on firefighter tests has traditionally been less than the white rate. (Eighty-nine percent of white test-takers passed the 1999 exam, compared with 61 percent of blacks; 97 percent of whites passed a watered-down 2002 exam, compared with 85.6 percent of blacks.) In an adumbration of rulings to come, Garaufis found the city guilty of disparate-impact discrimination not after a trial in which the city could present evidence for the business necessity of its firefighter exams, but without a trial, by granting summary judgment for the plaintiffs."

This is beyond outrage-summary judgment based on the mere fact that there was a racial gap in test results. What's next, a repeal of the laws of gravity? "Summary judgment means that a judge finds no legitimate factual dispute between the parties that requires elaboration at trial. Though the city had put ample evidence into the record supporting the exams’ validity and contesting the plaintiffs’ charges, Garaufis peremptorily rejected it all. By granting summary judgment, he kept the case away from jurors, who probably would not cotton to the idea of firefighters chosen on the basis of race, not skills, showing up to save their homes from fire."

Garaufis needs to be exposed as the meddling and dangerous quack that he is-and the people of New York need to know who is not looking out for their safety. But then this blind justice went even further and found fintentional discrimination out of simple disparate impact: "Garaufis pointed to no evidence of deliberate discrimination on the city’s part in that January 2010 ruling; he merely bootstrapped the disparate-impact finding into an intentional-discrimination one. Such a technique is almost unheard of in disparate-impact cases. The whole point of disparate impact theory is to keep the discrimination juggernaut going in a world where intentional discrimination by governments and large employers has virtually disappeared."

This step is, in our view, so wrongheaded that it should be grounds for the judge's impeachment. He is a menace to public safety-and, in comparing Mike Bloomberg to Bull Conner, he should have forfeited his right to remain on the bench: "Garaufis’s finding of intentional discrimination was not just groundless, it was recklessly inflammatory. It mirrored the outrageous charge of the Vulcan Society’s past president, Paul Washington, that Mayor Bloomberg embraces “segregation now, segregation tomorrow, segregation forever.” Garaufis’s language may have been slightly more circumspect, but his meaning was identical to Washington’s. Perhaps not coincidentally, Garaufis’s intentional-discrimination ruling also gave him expanded powers to intervene in the fire department’s affairs by crafting a new exam and dictating hiring policies."

So the trumping up of the intentional discrimination charge was a ruse used by Garaufis to make himself the fire commissioner-and the FDNY is right to fight this boneheaded fool; someone who believes that having an elementary reading level is  not a job requirement for being a firefighter. As McDonald points out: "Both during their training period and on the job, firemen must absorb written instructions about firefighting, EMS techniques, and an ever-increasing array of hazardous materials. Further, the capacity to read is not a self-standing, isolated skill; it demonstrates cognitive abilities essential to learning and sound judgment."

There's so much more that is egregious here, but read the entire piece if you want to get nauseous about the state of our federal judiciary-suffice it to say, that the city must appeal this ruling and take it right out of Goofy Garaufis' hands: "The city should take an immediate appeal to the Second Circuit. Ideally, one of New York’s elite law firms would help it litigate this important case on a pro bono basis, though the left-wing slant of most pro bono work makes that assistance unlikely. There is simply no evidence in the record that city officials have ever devised fire department hiring policies with the deliberate intent of keeping blacks off the force. The overwhelming reason why blacks and Hispanics are underrepresented on the force has been their historical lack of interest in a fireman’s job; the effect of the hiring exam is trivial compared to minorities’ low application rate."

There ar now hundreds of potential minority firefighters who have already passed the city's test, and thanks to its recruitment drive, there will be more to come. But if Garaufis gets his way, it will lead to a poisonous atmosphere in the firehouse since each firefighter is part of a team whose safety very much depends on both ability and mutual respect-it's not only about public safety: "Creating a new fireman’s class based on race risks poisoning the esprit de corps and mutual respect essential for optimal firefighting."

But the judge's underlying misconception remains-cognitive tests are prima facie examples of intentional discrimination. And given that false world view, there isn't a test in the world that could pass the Garaufis smell test: "The long-term solution to all such racial imbalances is for blacks and Hispanics to apply themselves more diligently in school. There is not a single cognitive test out there today that is designed to produce disparate racial pass rates. Until black and Hispanic language and thinking skills improve, such disparate pass rates are unavoidable."

As for Garaufis, what he deserves is for a conflagration to break out in his courtroom, one that threatens his own sorry behind. If that were to happen, would it be unconstitutional-a violation of the first amendment perhaps-to yell fire in a crowded courtroom? We're not sure, but we won't be asking Garaufis for his opinion.