Someone drew the short straw over at Slate yesterday. The center-left contrarian e-magazine put a man named Richard Thompson Ford in charge of defending the Sonia Sotomayor-approved ruling in the now-famous Ricci v. Destefano.
New Haven’s decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional. Ricci’s claim is that the city’s effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).
This argument would undermine an important part of modern civil rights law. Some of Sotomayor’s critics argue that, in the era of Obama, we no longer need such proactive policies to promote racial equality. But racism isn’t a thing of the past yet. In fact, we haven’t corrected the lingering effects of racism that is in the past. It’s precisely because overt racism is no longer the main impediment to racial equality that the law against inadvertent discrimination is arguably now the most important part of civil rights law.
Alright, so in other words, the typical equality-of-results argument for affirmative action. The question, of course, is whether there was any inherent racial bias in the test, which is silly on its face (a Hispanic man was part of this lawsuit, if you’ll recall). The point here seems to be that there is simply no reason whatsoever, if the test was fair, that the results wouldn’t correspond proportionally to demographics. Quite the proposition, Mr. Ford.
There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions—choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact—in other words, that screens out a particular group for no good reason. New Haven claims that the test it tossed out had a disparate impact.
Well, there actually was a good reason: they didn’t do well on the test.
The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam—no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test.
Is he seriously contending that the exam itself caused the racial disparity in results? Where is the evidence for this? No one, to my knowledge, has contended that the test itself was somehow biased toward whites (which is almost always a dubious assertion, anyway). The chief complaint seems to be that simply not enough blacks performed optimally.
Conservatives think the law against disparate impact discrimination does more harm than good.
Straw man erected, straw man shot down.
Actually, that’s not what we think. We think that if the blacks didn’t want to see racial disparity in the results, they should have performed more strongly on the test.
But, properly applied, disparate impact law doesn’t excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can’t just put a “women need not apply” sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias.
Perhaps. Was this the case in the test? No answer.
Perhaps New Haven’s black candidates could overcome these disadvantages by studying harder, like Frank Ricci did. But Ricci took extraordinary steps to ace the test—six months off work to prepare and $1,000 on tutoring.
Now here’s a brilliant argument: Ricci had it coming for studying so hard!
Ricci isn’t attacking the timing of New Haven’s decision; he’s attacking the city for considering the racial impact of the exam. And that’s exactly what disparate impact requires an employer to consider. Ricci’s position threatens to burn down one of the nation’s most important civil rights laws. Even in the improved racial climate of the Obama era, that should set off alarms.
And so the piece concludes. A truly pathetic amalgam of logical fallacies, tortured reasoning, and question-begging. It really has to be wondered: does Ford believe a word he’s writing, or did he just draw the short straw?
I’ll leave you with a quote from a superior mind:
“The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” – Chief Justice John Roberts
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Alex Knepper can be contacted at apkkib@aol.com.
May 28th, 2009 at 12:46 pm
Although true, that quote was not originally J. Roberts.
May 28th, 2009 at 1:07 pm
The question here is was title VII violated? If not, the supreme court must overturn! If it was then what needs to be done to get that amendment from the Constitution removed?
May 28th, 2009 at 1:14 pm
What Ford conveniently failed to mention is that Ricci took “extraordinary steps” because he is dyslexic, and learns better by listening. Candidates for the promotion had just three months to prepare to take both a written and oral test. That is why Ricci paid an acquaintance more than $1,000 to read textbooks onto audiotapes, and gave up a second job to study 8 to 13 hours a day. He succeeded in overcoming his obstacles, ranking sixth among the 77 candidates who took the test. That commendable effort was, unfortunately, all for naught, since Ricci, according to Sotomayor and her colleagues, has the wrong skin color.
May 28th, 2009 at 1:59 pm
“The man named Richard Thompson Ford” is a member of the Stanford Law School faculty:
http://www.law.stanford.edu/directory/profile/20/Richard%20Thompson%20Ford/
He has written widely on the subject of civil rights law. His overarching argument, which you don’t bother to refute, is that Sotomayor based her decision on existing civil rights law.
As to whether there’s an inherent racial bias in standardized tests, that’s been a matter of debate among social scientists and psychologists, all of whom take it very seriously:
http://www.theatlantic.com/doc/200311/mathews
May 28th, 2009 at 2:03 pm
All this race stuff sucks. It’ll be better 75 years from mow when everyone is tan skinned and has an unclear race.
May 28th, 2009 at 2:18 pm
Essential Viewing for Sonia Sotomayor (a lesson most of us learned before kindergarten)
Part 1: http://www.youtube.com/watch?v=Ln3V0HgW4eM
Part 2: http://www.youtube.com/watch?v=s0LgMpfLD1Y
May 28th, 2009 at 2:26 pm
If I were a Senator, I would ask Ms. Sotomayer to rank the races, so to speak. If a wise Latina would do better than an old white male, how about a black male? Let’s hear her Top 10 races for judging. Is this racist or sexist or both?
May 28th, 2009 at 2:55 pm
I want the NRA to make noise about this woman. Let’s put some pressure on Democrat senators from rural states. I bet Nelson, Landrieu, Casey, Brown, Byrd and Rockefeller don’t want to piss off the NRA. Make them all sweat.
Obama is so cocky. Let’s knock him down several pegs.
May 28th, 2009 at 3:20 pm
Sotomayor Ruled That States Do Not Have to Obey Second Amendment
http://www.cnsnews.com/public/content/article.aspx?RsrcID=48718&print=on
To right’s dismay, NRA stays out of Sotomayor fight
http://thehill.com/leading-the-news/to-rights-dismay-nra-stays-out-of-sotomayor-fight-2009-05-28.html
White House urged to address ‘racist’ charge
Some Democrats and political analysts are urging the White House to shift course and concede that Supreme Court nominee Sonia Sotomayor made an error when she suggested in 2001 that Hispanic women would make better judges than white men.
http://dyn.politico.com/printstory.cfm?uuid=889921A0-18FE-70B2-A89545DF2034CFFE
Will Race Discrimination Ruling Burn Sonia Sotomayor?
Supreme Court Pick Criticized for Opinion in White, Hispanic Firefighters’ Race Bias Case
http://abcnews.go.com/Politics/story?id=7691708&page=1
Court, cameras, action!
Souter’s departure could clear the way for far more transparency at the Supreme Court
http://www.usatoday.com/printedition/news/20090527/column27_st1.art.htm
May 28th, 2009 at 3:22 pm
So this is all about knocking Obama down a few pegs. Nice to know that it actually has nothing to do with Sotomayor.
What’s emerged in the past few days is that she leans heavily on precedent and established law when making her decisions. Conservatives don’t like this because what they really want on the bench is a right-wing judicial activist.
BTW, Bush set the bar for cocky, Obama is confident. There’s a difference.
May 28th, 2009 at 3:27 pm
It’s about both. You pound against him relentlessly and public opinion moves away from him. Isn’t that what you did to Bush for eight years?
Please.
May 28th, 2009 at 3:29 pm
That Politico story is spot on. The longer Obama waits, the more time the right has to poison the water.
The woman ought to be politically savaged. And if her nomination is halted it only makes Obama appear as impotent domestically as he does when he is abroad.
May 28th, 2009 at 3:31 pm
Which of our current conservative bloc of Supreme Court justices is a “right wing judicial activist”?
May 28th, 2009 at 4:20 pm
There’s nothing here. The appeals court didn’t hear the case.
They didn’t here the case because the law was very clear. An activist judge would’ve tried to change that fact. I think the law was wrong, but the state legislature would have had to pass a new law for the court to have acted in any other way.
May 28th, 2009 at 4:34 pm
It would take an activist judge to change Roe V. Wade soo many years after the fact as it has been used as precedent.
May 28th, 2009 at 4:38 pm
FILLIBUSTER NOW!!!!!!
May 28th, 2009 at 4:43 pm
This piece is on RCP now.
May 28th, 2009 at 6:03 pm
Rasmussen: 87% Expect Sotomayor Will Be Confirmed, 45% Say She Should Be
http://www.rasmussenreports.com/public_content/politics/current_events/general_current_events/87_expect_sotomayor_will_be_confirmed_45_say_she_should_be
May 28th, 2009 at 10:02 pm
I found this via realclearpolitics. Cool post brah
May 29th, 2009 at 7:50 am
Unfortunately, Slate was basically correct. The district court and the panel of three judges from the second circuit including Sotamayor who unanimously affirmed the lower court decision by refusing to hear the case were applying the law not making an emotive decision about the fairness of the firefighter’s case. There’s absolutely no debate about it. You may dislike the law, well then get the legislature in Hartford to overturn it. This like the whole affirmative action ploy attacking Sotomayor is going to blow up in Republican’s faces. You can’t be against acivism one day and then attack her for not being activist the next. If as some are suggesting Republicans get these firefighters up there and some of these Republican senators start grandstanding she’s going to rip their faces off.
May 29th, 2009 at 7:57 am
One part of the case that is widely overlooked is that New Haven actually submitted the test to independent experts which scrutinized the test for unintended racial bias, all were of the opinion that the test was race neutral. So the author here is quite correct in his analysis of the portion of Slate’s article which attempts to draw comparison with women and weightlifting.
May 29th, 2009 at 8:14 am
….So while it is true that the law is correct re: disparate impact, the application of the Law by the District Court was incorrect in that it read it to mean equal results. The 2nd Circuit has an obligation to at least address these issues in a reasoned opinion, even if they still agree with the decision, as Judge Cabranes pointed out. Quite simply, this was a case of first impression in the Second Circuit, so the assertion that the majority relied on “precedent” is also fallacious.
May 29th, 2009 at 9:20 am
#20, your assertion that “there’s absolutely no debate about it” that Sotomeyer was “applying the law” is clearly wrong. There was a debate among the justices in the 2nd cir. over whether to re-hear the case, en banc. Judge Cabranes wrote a bitter dissent, arguing that Sotomeyer’s panel decision skirted the important constitutional issues. Moreover, all indications are that the US Supreme Court is going to overturn Sotomeyer’s 2nd Cir. decision. It is not at all clear that she simply followed the law.
May 29th, 2009 at 1:44 pm
“Which of our current conservative bloc of Supreme Court justices is a “right wing judicial activist”?”
Which on isn’t?