Empathy Wins!
**** Obligatory Warning that I am not a lawyer and never know what the hell I am talking about ***
Via Scotusblog live blog, the court rules 5-4 in Ricci for the white firefighters (link to .pdf of the ruling here):
Kennedy delivered the 5-4 majority opinion of the Court in Ricci. Justice Scalia filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justice Scalia and Justice Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined.
I know this is supposed to be one of those racially charged cases, but from where I sit, I never understood why. Pretty clearly to me, the firefighters who took the test and passed got screwed by the city, but at the same time, it seemed to me there was a pretty reasonable argument that the city was just reacting to the way the law had been written and had to do a little CYA. Again, as a non-lawyer, either outcome would have been defensible to me.
I do find it interesting that all the arguments about how unfair this was to the white firefighters were direct appeals to empathy, however.
Should be interesting to see how this impacts the Sotomayor hearings.
DougJ
The bipartisan thing would be for Obama to withdraw Sotomayor’s nomination over this.
Rosali
Four justices sided with the Sotomayor decision. Ideological differences do not make someone unqualified.
David
Because tests can be discriminatory. It is not that simple at all, and there is a large amount of case law that the Supreme Court is apparently upending to rule in this fashion.
Activist? Ha, guess not. Precedents mean nothing in this case, apparently.
Comrade Stuck
The press will try and spin it into another D VS R cagematch, and some of the dimmer bulbs of the RW will milk it some. But the fact is, Sotomayer was just following years of precedent with her short pro forma ruling. Which paradoxically undercuts the wingnuts cries of “activist Judge”.
eric
It wont affect the nomination becuase it was 5-4. 8-1 or 9-0 might have made “some” difference. It hardly makes her decision indefensible that another judge on Circuit Court agreed and four Justices agreed. In fact, it will likely make criticism harder because none of the judges that agreed with her are Latino or African-American, so to single her out as allowing her race to impact her decision making will amplify the charges of racism directed at her critics.
In short, she will be able to rely on the reasoning of her own opinion and that of the dissenting Justices as well.
This is a foregone conclusion, it is just that the knuckle draggers have not yet figured it out.
eric
zirconium
Who cares? How about a posting a photo of Tunch riding on Lily’s back? Don’t hold back on us.
4tehlulz
In before “THIS IS A REPUDIATION OF SONIA SONTOMAYOR” headlines and commentary.
SGEW
From Ginsburg’s dissent (emphasis added):
Snap.
Punchy
Really? 5-4 outcome? Never could have foreseen that.
gopher2b
I’m reading it now. Notably, Kennedy wrote it (the Chief Justice picks the author of the opinion. It goes without saying that Kennedy is the swing vote here…that Roberts sure is crafty).
John Cole
OK- I just finished reading the ruling and the Ginsburg dissent, and I saw nothing that would suggest to me, as a non-lawyer, that my original assessment made sense- reasonable arguments could be made for this to go either way.
chopper
it shouldn’t, but it probably will. the day after scalia was nominated to the scotus one of his decisions on the court of appeals for the DC circuit was overturned by the scotus, which had to hurt. didn’t really affect his nomination process as i recall, which was pretty straightforward.
Cris
It won’t impact the hearings, but it will impact the coverage of the hearings.
gopher2b
@SGEW:
Another way of saying that is: the Equal Protection Clause does not apply to white males.
Zifnab
@SGEW:
But, the problem I have with that is this. If one of the black FFs had ousted one of the white FFs, then maybe the shit storm wouldn’t have hit and all the promotions would have gone through. But when only whites pass, they hit the reset button. I don’t know if you can go so far as to claim that this is discrimination, but it does put the lie to the idea that the department is being run as a meritocracy. Either the test isn’t a suitable indicator of merit, or the department is more concerned with racial quotas than testing skill.
Saying, “We have a test to determine who gets promoted” and then turning around and denying promotion based on the test strikes me as unfair business practices. If the test doesn’t vest rights for a promotion, what does?
I mean, you could look at it another way. Let’s say a company has a Last Hired, First Fired layoff policy. And the last three people who get hired are black. And layoffs come down the line demanding three people get laid off. And the business says, “Well we can’t fire three black staffers, as that’s bad politics. We’ll just lay off a white guy, in direct violation of company policy.” It just doesn’t seem right.
If the fire department wants to change its test in the next round of promotions, that would make more sense than scrapping the existing system until they can re-rig it to get the results they want. Otherwise, why have this farce of tests at all. Just go to racial quotas and be done with it.
Michael D.
@Zifnab:
Agreed.
gex
@Zifnab: I think you can legitimately question the validity of the test and what it is measuring if only white men pass the test. I’m not comfortable with the proposition that no minorities were skilled/smart enough to pass the examination.
But I agree with you on the main points: you don’t get to change the rules mid-game. The department should have probably put a greater effort into the development of the test and the test should have been tested for potential bias before it is used as a way to determine who merits promotions.
b-psycho
@Rosali:
Yeah, including the one that she’s nominated to replace…which is what I don’t get about the fuss over her. The way the wingnuts are acting, you’d think it was Scalia stepping down & Obama had nominated Amy Goodman. From what little I can tell of her, Sotomayer might actually be a shift more towards the Right in comparison.
Scruffy McSnufflepuss
Haven’t had time to read the ruling yet. Is there anything in there that will serve as consolation to the city of New Haven when a shitstorm of lawsuits rain down on them from the non-white firefighters who were disparately impacted by this test? From what I read in the syllabus, the Supreme Court just seemed to offer them the chance to argue that they got successfully sued under for not including the tests, so therefore including the tests can’t result in disparate impact. Which (if I’m understanding it correctly) is an asinine argument, but exactly what I’d expect from a court stupid enough to issue this kind of ruling.
SGEW
I was just snarking on the phrase “sympathy” (re: the whole kerfuffle over “empathy” etc.): I was not commenting on the actual merits of the case, which I am still ambivalent on.
[And I’ve pretty much given up on amateur online commentary on SCOTUS cases until I’ve finally (finally!) gotten my J.D. (any semester now, really).]
JDM
Geez, what does Jeff Rosen think?
noncarborundum
@John Cole:
You may want to rethink your wording here.
gopher2b
Key parts of the holding:
(1) Employers cannot discard a test after its given unless a “strong basis in evidence” shows that the test was actually discriminatory (i.e. unforeseen flaw that resulted in disparate impact, alternative test that does not create disparate impact).
(2) Subject intent of the employer is irrelevant (i.e. it doesn’t matter that the employer was trying to avoid disparate impact)
In defense of Sotomayor, the Court reconciled a conflict that it had not dealt with before (what to do when disparate treatment and disparate impact have two different results).
Little Dreamer
@Comrade Stuck:
But as we all know, it’s the RW’s who WANT activist judges.
malraux
How does one determine if a test is a suitable indicator of merit? Shouldn’t alarm bells go off if a test (which will inevitably have various biases in it) says that no minority is qualified? Sure its plausible that no minority member was qualified for promotion, but I’d say its more likely that the test was flawed.
Incertus
@Zifnab:
As I understand it, the first option is what the city decided, and it did so based on legal precedent, which as someone above noted, the 5 vote majority just upended. The test might or might not have been flawed, but if the city hadn’t tossed the results, they’d have had to defend it, and if they weren’t sure Or if courts had ruled against them), they’d have been on the hook for major trouble. They tossed the test and got hammered anyway. They were in an impossible situation.
Face
New Haven was f’ed from the get-go. Promote nothing but whites? Blacks sue and scream “discrimination”. New Haven says “wait, this test results are going to get us sued, so lets hold off awhile”, and whites sue and scream “discriminination”. Complete no-win situation.
If I’m New Haven, I just say fuck the fire department—from now on, put out your own damn fires. No more NHFD.
kay
@chopper:
Yeah. Scalia’s confirmation was brutal. It was 98-0. I’m surprised he held up under all that blistering questioning.
I believe he points to that unanimous vote as further evidence of his fabulousness, as if any were needed!
The Raven
John Roberts: Roger Taney for a new century.
Krawk!
gopher2b
Scalia’s concurrence is interesting. Essentially, he’s saying that this test just moves the discrimination back one step and someday the Court will have to decide whether Title VII permits racial discrimination against whites.
DougJ
I have no idea what the legal merits of these decisions were.
But it really bugs me that the entire Village is whining about this being such an extremist ruling from Sotomayor. How can it be when it affirmed a lower court ruling and the SC ruling was so divided?
Face
But flawed, how? How does a firefighting test skew towards whites? Did the test ask a boatload of questions on disco, Klan membership, and suburban living?
Comrade Dread
I think it’s pretty clear that the city screwed up the whole thing.
It’s rather hard to have an opinion on whether or not the test was discriminatory without seeing the test, but once the city opted to make a written and oral exam 100% of the basis for promotions rather than one of many factors, they were leaving themselves open to a lawsuit either way if the test results seemed to adversely impact one or more ethnic groups.
Though to be honest, I must admit that I don’t understand exactly how a test can be discriminatory, unless it’s heavily weighted toward subjective questions open to interpretation as opposed to objective questions with only one answer.
Brian J
I’m not sure to what extent this is the media’s fault, but it seems odd that this is being portrayed more as a representation of a few people getting screwed than a law and results of that law being fundamentally flawed. Perhaps there’s no way to really separate the two, but it doesn’t seem like most who are criticizing the side Sotomayor appears to fall on are looking at the bigger picture.
@Zinfab:
The problem I see with the possibility you raise is that the civil rights regulations aren’t designed for that, because it probably doesn’t exist. Nobody is really claiming that whites are the ones facing discrimination or unintentionally biased testing, so any sort of hypothetical to suggest a situation where they were isn’t really sensible. It’s like describing a situation that deals with meat eating with the hypothetical of the cows eating us; it doesn’t work, primarily because that sort of situation doesn’t occur.
I think your example fails because there’s a fairly clear cut way of looking at who would face what decision in that example. Unless there were bias built into hiring, in which case another set of issues is raised, hiring and firing based on order of employment doesn’t leave room for any ambiguity, similar to a test on height.
Punchy
Because, today, America won and Sotomayor lost, DougJ. The wheels of jurisprudence were greased with the tears of the Mexican Mistake, and clearly show by the result of a overwhelming 5-4 smackdown majority that America, and by extension, the entire world, want Obama to toss this Tango Tart and renommy the Bork for the SC.
Zifnab
@Incertus:
They could have gone through with the promotions and changed their test up / altered their policy for future promotions. If people don’t like it this time around, you issue your mea culpas, maybe offer a token raise or put a black guy on the board that writes the tests, whatever calms ruffled feathers.
But you don’t dangle a promotion in front of a bunch of guys and snatch it back again like that. I’d be pissed off if it happened to me. I don’t blame any of the white firefighters for bringing this to court.
Keith
Naturally, a 5-4 reversal means a complete and total rebuke of Sotamayor that means she is wholly unqualified to be on the Court. Or something like that.
Llelldorin
@Comrade Dread:
That was addressed in the dissent. The test preparation material was expensive and backordered for weeks, so it really helped to have relatives in the fire department who you could borrow them from. Since the FD was openly discriminatory until the 70s, that favored white candidates heavily. (Properly speaking, the system favored nepotism, but that amounts to racial discrimination if the department started that way.)
Persia
@Llelldorin: . The test preparation material was expensive and backordered for weeks, so it really helped to have relatives in the fire department who you could borrow them from.
Yeah, that’s a nasty wrinkle—the Good Old Boy network.
Little Dreamer
@DougJ:
because she was chosen by a DEMOCRAT!
ThymeZoneThePlumber
@Little Dreamer:
DougJ is all about theater when it comes to blogging and spoofing, but seems to have no concept of it when it comes to real politics.
The “reaction” is all theatrical. Most of what happens in Washington DC is theatrical.
It’s one of the reason why people hate pundits, hate politicians, and soon, will hate blogs. Sooner or later, theatrics get old, and people want real.
Michael
Fake merit for white guys comes back with full force.
Luc
I somehow have my doubts about a “racially discriminatory” written test.
It would be very interesting to look at the discriminating questions, or?
Does any body have any ideas or links on the topic?
malraux
@Face: Same way any other test skews toward certain biases. This was a test about promotion to Lt, not just basic firefighting techniques. It wasn’t just a factual test (though even those can be biased). Asking questions about leadership choices using a white-dominated cultural references would be a basic example; ie the questions reference tv shows viewed primarily by a white audience, or some other cultural reference that whites have a stronger depth of knowledge of. Thus the test becomes a case of testing ones ability to evaluate white culture over basic intelligence.
If you want a more coherent discussion of these sorts of issues, pick up Mismeasure of Man by Gould. He’s far more knowledgeable and intelligible than I could be.
chopper
@Keith:
in fact, now that i look at it, scalia saw two decisions he voted with on the court of appeals shot down by the scotus (one of which he authored) on the day after his nomination was announced.
Rosali
The promotional test focused on fire-fighting when the majority of the NHFD calls are for medical emergencies. You can be a wiz at actually performing your day-to-day job and then not be able to answer questions on a different aspect of it.
O/T Madoff gets 150 years
David
The results were actually pretty limited, I think. In reading it, they basically removed the right of the employer to scrap a test as a preventative measure – once they make the test and administer it, they can’t change the outcome even if the results might have adverse impact.
Woody
Every SCOTUS appointee since 1970, except Ginsberg, has ruled rightward of the justice s/he was replacing.
gopher2b
Ginsburg’s dissent is weak but that may be a result of my … wait for it … bias.
Llelldorin
@Luc:
See my earlier comment.
Ash
@Luc: In matters like this it’s never always about the actual questions. It’s more often about what goes into the preparation of the tests and the environment they’re administered in.
Zifnab
@Face:
It could use vernacular the black test takers just aren’t familiar with. I mean, think about taking a test in England and getting questions asking about how long the queue is or what colour shirt a guy is wearing. That could get confusing.
Alternately, if the test deals specifically with regional attributes, it might include street names that the black guys just didn’t know about. Or it may have had questions like “Who is your boss’s boss?” that a guy in the wrong side of the department might have less familiarity with because he doesn’t go to the same church or have kids that attend the same school as the superior officer.
And of course, I mean, it’s also possible that the test was administered badly. If the white guys took the test separately and were given extra time, or different instructions were given on how the test was scored. Hell, it could just be an issue of test preparation. If one group got a study crash course and the other didn’t.
I’d like to see all the details to get an idea of what actually happened.
Scruffy McSnufflepuss
@Luc:
Here’s a link to the City’s brief. It talks about it a little bit.
http://www.abanet.org/publiced.....ondent.pdf
According to a local union contract, promotions were to be made based on exams with written and oral components weighted 60% and 40% respectively. Pet. App. 606a. To qualify even to take the tests, candidates for lieutenant had to have 30 months of experience in the New Haven Fire Department, a high school diploma, and training courses in related subjects. Pet. App. 352a. Candidates for captain needed one year as a “certified fire lieutenant” in the Department, a high school diploma, and formal training courses in related subjects. Pet. App. 365a.
The City retained a consultant, Industrial/
Organizational Solutions, Inc. (“IOS”), to develop and administer these exams. CAJA382. IOS interviewed incumbent lieutenants and captains, sent out job questionnaires
(Pet. App. 614a-618a), asked the chief and
assistant chief of the Department to identify relevant source material (Pet. App. 625a), and created a multiple- choice written test for each position, drawing on 1200 pages of source material (JA49; see Pet. App. 353a-359a, 367a-371a).
IOS did not, however, pursue a process known as an “Angoff workshop” (Pet. App. 698a), which enables a test-developer to “establish a content-valid, legally defensible cut-off score for the examination[]” (Pet. App. 321a; see Pet. App. 311a, 698a). Although IOS’s proposal to the City had stated that it would use three fire experts from Chicago (Pet. App. 321a) to perform this “very critical process,” IOS ultimately skipped it and used the City Charter’s cut-off of 70 (Pet. App. 77a, 698a). IOS conceded that using the “conventional cutoff” of 70 “isn’t very meaningful when you are trying to find … the cut-off score that defines minimally competent or minimally qualified, which is ultimately what you are looking to do in a situation like this.” Pet. App.697a.
Lacking a relevant cut-off score, IOS designed difficult tests. Pet. App. 698a-699a. Recognizing that “more difficult tests tend to have greater levels of adverse impact,” it stated, “we are not going to create an exam to try and cater to the fact that the test won’t have adverse impact.” Pet. App. 698a; see Pet. App. 685a-686a.
“Standard practice” would have required review of the written tests by New Haven fire experts to ensure, among other things, that the content reflected an accurate
understanding of New Haven rules and practices. Pet. App. 635a. The City had decided, however, in order to safeguard the integrity of the testing process (there had been allegations of cheating on past exams (Pet. App. 601a)), that no one from New Haven would review the tests prior to administration. Pet. App. 508a-509a, 635a-636a. IOS did not provide for review by other experts, save for a single battalion chief from the Atlanta area. Pet. App. 509a. Candidates took the written and oral tests in November and December 2003 (CAJA700-701), and in late December, IOS provided the scores to the City (JA221).
2. Shortly thereafter, on January 9, 2004, a Connecticut
state court issued a decision restricting the
City’s use of civil service exam results. CAJA1706-
1720. Previously, New Haven had interpreted the socalled
“Rule of Three” in the City Charter, which requires
that a promotion be awarded to an individual receiving
one of the top three scores on the relevant
exam (Pet. App. 77a), as follows: Scores were rounded
to the nearest integer (on the understanding that minute
score differences were not statistically meaningful
(see CAJA1701)), with each rounded score level constituting
a “rank”; and the City could promote from the
top three ranks for each position.1 Although state
1 In other words, if three candidates scored 90.9, 90.8, and
90.7, the City would round their scores to 91 and band them in a
single rank (of 91) for purposes of the Rule of Three. See Kelly v.
City of New Haven, 881 A.2d 978, 993-994 (Conn. 2005) (explaining
5
courts had previously disagreed with the City’s interpretation
as a matter of local law,2 none of these courts
had found that the City’s interpretation or its application
was in any way related to race,3 and the City had
continued to press its legal argument until the January
9, 2004 injunction (CAJA1707). The state court injunction,
which prohibited this rounding procedure, constrained
the City’s authority with respect to these
tests. Pet. App. 443a-444a.
3. When City officials reviewed the results of the
tests, they found significant and unexpected racial disparities.
CAJA700-702. The pass rate of black candidates
on both the lieutenant exam and the captain exam
was approximately one-half the corresponding rate for
white candidates.4 More jarringly, under the new Rule
of Three, out of the nineteen possible candidates for
the City’s previous method). Under a Fire Department practice
not required by the Rule of Three, the Department ordered candidates
within a rank by seniority. Id. at 995; see also Broadnax v.
City of New Haven, 851 A.2d 1113, 1120 n.9 (Conn. 2004) (City’s
authority broader than Fire Department practice).
2 The City’s interpretation was based on a 1993 Charter revision
that changed the Rule of Three to address the top three
“scores” rather than the top three “applicants.” CAJA1685-1688.
3 See Bombalicki v. Pastore, No. 378772, 2001 WL 267617
(Conn. Super. Feb. 28, 2001) (unpublished); Henry v. Civil Serv.
Comm’n, No. 411287, 2001 WL 862658 (Conn. Super. July 3, 2001)
(unpublished); see also Hurley v. City of New Haven, No.
054009317, 2006 WL 1609974 (Conn. Super. May 23, 2006) (unpublished);
Kelly, 881 A.2d 978. Petitioners’ statement to the contrary
(Br. 29) is false. See also infra p. 39 & n.34.
4 In both cases, the pass rate for black candidates was 52% of
the corresponding rate for white candidates. See JA225-226.
6
promotion (for fifteen positions), none would be African-
American. JA223-224.
These results were starker than under previous
tests. Although prior tests had also reflected disparities,
African-Americans had placed higher and had
been available for promotions. JA218-219; CAJA734.
The highest-ranked African-American candidate for
lieutenant ranked third in 1996 and fifth in 1999, but
thirteenth on the 2003 test. JA218. For captain, the
highest-ranked African-American candidate had been
fifth in 1998, but was fifteenth under the 2003 test.
JA219.
The City invited IOS to discuss the tests and the
results. IOS strenuously defended them. Pet. App.
670a. City officials, by contrast, believed that the severe
disparate impact triggered a duty to inquire further
and referred the issue to the Civil Service Board.
JA221-222.
4. The Civil Service Board is an independent fivemember
organ of the City that administers the City’s
civil service employment system, including by supervising
the process of competitive examinations and reviewing
their results before certifying lists of eligible
candidates. Pet. App. 74a-77a.
The Board held five hearings over a period of two
months to consider whether to certify the test results.5
All of the meetings were public, and the Board made
clear that ex parte contacts were prohibited. CAJA768,
798. The Board stressed that it, and not City officials,
would make the ultimate decision. CAJA819-820. Be-
5 For excerpts of the hearings see JA22-169 and Pet. App.
465a-589a; for the complete transcripts see CAJA698-1162.
7
cause of a potential conflict (and at the request of petitioners’
counsel), one of the five Board members (the
only African-American on the Board) did not participate,
leaving the Board with only four members to resolve
the certification question. CAJA812-814, 875.
The Board heard testimony from multiple sources on all
sides of the issue.
a. A City official presented the Board with the
test results, as well as data showing that the IOS examinations
had produced a “stark[er]” disparity than
had previous exams for these positions. JA24, 155.
The City’s then-Corporation Counsel, Thomas Ude,
informed the Board about the disparate-impact standard
in employment discrimination law. JA134-144.
He explained that a “significant adverse impact … triggers
a much closer review, a much closer examination,
because it’s like setting off a warning bell that there
may be something wrong.” JA152; see also CAJA1012.
b. A number of firefighters testified that the exams
tested material that was irrelevant in New Haven
or contrary to New Haven firefighting policies. JA44-
48; JA67-70. The source material also contained contradictory
information on the same subject matter
(CAJA786)—a problem that had been acknowledged
previously by IOS (JA19-21). Other firefighters (including
three petitioners), however, defended the tests,
contending that they should be certified. CAJA772-
773, 784-789, 1139-1142, 1145-1148.
c. Numerous members of the community testified.
The head of the local union suggested that the
Board hear from an independent expert. CAJA807-809.
A representative from an organization of black firefighters
noted that the nearby city of Bridgeport, which
had experienced similar issues in the past, currently
8
used different relative weightings of oral and written
exam components as compared to New Haven, and
faced less disparate impact than it had before. JA64-66.
Boise Kimber, an African-American minister and a
member of the board of fire commissioners, testified
that African-Americans were underrepresented in the
Fire Department. CAJA769-771. Kimber stated that,
because there were no African-Americans among the
four sitting Board members, the Board lacked legitimacy
to decide the question—an assertion to which
Board members took strong offense. CAJA875-882.
Although a representative of white firefighters (petitioners’
counsel in this case) and a representative of
black firefighters both stated they would sue the City
depending on the decision (CAJA816-817, 838), the
Board stressed that it would not be motivated by a fear
of litigation (CAJA738).
d. The developer of the tests, IOS’s Chad Legel,
testified in defense of the tests.6 He explained that because
of the City’s decision to forgo internal review, no
one in the City had reviewed the tests before they were
given (CAJA936)—a fact that surprised Board members
(CAJA982). When members of the Board asked
Legel to suggest how they could independently verify
the exams, he answered that any layperson could look
at the tests and tell whether they were biased.
CAJA996-997. The Board Chairman was skeptical that
“a couple of people off the street” would be able to assess
the tests. CAJA1001-1002.
6 IOS also had sent a letter to City officials defending its exams;
in its live testimony, IOS presented the same arguments to
the Board that appear in its letter. Compare Pet. App. 337a-339a
with Pet. App. 501a-536a.
9
e. In search of more information, the Board
sought to hear from independent experts. The local union
suggested Dr. Christopher Hornick, an industrial
psychologist in the same field as IOS. JA159. Hornick
testified that he was “a little surprised at how much
adverse impact there is in these tests,” since he saw
“significantly and dramatically less adverse impact in
most of the test procedures that we design.” JA93-94.
Hornick also raised questions about whether a multiple-
choice knowledge-based examination is an appropriate
way to select fire officers: Such tests, he explained,
measure the ability “to just memorize and give
the correct answer from a multiple choice” (JA103), and
there are other testing methods that are “much more
valid in terms of identifying the best potential supervisors”
(JA96). Hornick identified “situation judgment
tests” or, alternatively, “assessment center[s]” as
methods that “would have increased the likelihood of
getting the best candidates at the top of the list[.]”
JA102.
A second expert, Vincent Lewis, an experienced
firefighter, stated that the tests were comparable to
examinations he had taken in the past. JA114. A third
expert, Dr. Janet Helms, spoke about general problems
of race and culture in testing. JA120-133.
f. The Board held a fifth and final meeting. Ude
provided further legal analysis. He stated that the
relevant inquiry is “whether an examination is … really
testing for what you’re looking to test for[.]” JA137.
He had reviewed a New Jersey case in which a fire department
promotional examination was held invalid because
it had tested candidates’ “ability to recall what
was in a particular text [more] than their firefighting or
supervisory abilities.” JA137-138. Ude noted that
some questions on the New Haven exam were quite
10
similar to those discussed in the opinion in the New
Jersey case. JA138, 148.7 Ude expressed concern that
the New Haven examinations had not “served th[e]
purpose … [of] find[ing] good supervisors[.]” JA142.
The City’s Director of Personnel said, similarly, that
“upon closer review of these two exams, their content
has raised, rather than answered, questions about how
valid these tests are for the purposes intended.”
JA156.
g. At the end of this fifth meeting, the Board
members held a public vote. JA160-169. Two Board
members voted to certify the exams, and two, Malcolm
Webber and Zelma Tirado, voted not to certify. JA165-
169. Tirado explained that she believed that “the process
was flawed” and that “the test was flawed.” JA167.
Webber also voted no, explaining: “I originally was going
to vote to certify. That was my original feeling before
we got into the testimony. But I’ve heard enough
testimony here to give me great doubts about the test
itself and … some of the procedures. And I believe we
can do better.” JA166.
Because of the split vote, the results could not be
certified. See JA169. There is no evidence whatsoever
that the Board in general (or Webber or Tirado in particular)
was improperly influenced by any advocates on
either side of the debate.
5. Had the Board certified the exam results, under
the City’s Charter, the list of eligible candidates
would have been sent to the board of fire commission-
7 The case referenced was Vulcan Pioneers, Inc. v. New Jersey
Department of Civil Service, 625 F. Supp. 527 (D.N.J. 1985),
aff’d, 832 F.2d 811 (3d Cir. 1987).
11
ers. CAJA1363. That board, in turn, would have selected
lieutenants and captains from the list with the
limited discretion provided under the Rule of Three.
Presence on the list would thus not have guaranteed
any individual candidate a promotion. See Bombalicki
v. Pastore, No. 378772, 2001 WL 267617, at *4 (Conn.
Super. Feb. 28, 2001) (unpublished).
Under its contract with the City, IOS was also required
to prepare a “technical report” (which petitioners
also refer to as a “validation study”) detailing the
steps it took in designing the tests. Pet. App. 326a-
327a, 596a. IOS did not provide this report to the City.
Pet. App. 597a. It never offered to do so (CAJA462),
and there is no evidence that the City attempted to
prevent IOS from preparing a technical report. According
to IOS, the technical report was not “a necessary
document,” since the technical report would only
summarize “other documents that already existed[.]”
Pet. App. 597a; see Pet. App. 338a (letter from IOS to
City stating that “there is nothing further we can add
concerning the development and administration of the
tests”). Notably, such a report would not have proved
whether the tests were in fact “valid,” i.e., whether the
tests actually identified the most qualified candidates;
rather, it would have described the test development
process (Pet. App. 596a).
6. Several months later, and before the City could
decide how to proceed, petitioners filed the present action,
effectively freezing the promotional process (Pet.
App. 1013a-1014a). Petitioners’ suit alleged, inter alia,
a Title VII claim against the City and equal protection
claims against the City and seven individuals, including
the two Board members who voted not to certify.
12
JA194-196.8 Following discovery, both sides moved for
summary judgment. JA3-4. The district court granted
respondents’ summary judgment motion on the Title
VII and equal protection claims. JA12; Pet. App. 6a.9
The Second Circuit affirmed and then voted to deny rehearing
en banc. JA16.
Zifnab
@David:
I don’t see any problem with that, so long as it is applied consistently.
The real problem I have with the current SCOTUS is that Scalia, Roberts, et al will turn on a freak’n dime if their previous rulings don’t benefit the current moneyed interests.
ThymeZoneThePlumber
The problem here looks pretty simple to me. Foggy law has created a process that doesn’t work very well. The whole point of the law here is fairness, and the law and its execution don’t appear to be fair to anybody, or to anybody in particular.
So the courts are left to unravel the tangle of confusion, ambiguity, and frustration …. and the courts have had a hard time doing this. The case can be viewed in different ways and reasonable people can see it in different ways.
The end result was a divided Supreme Court decision.
This case tells nobody anything about Sonia Sotomayor, and a lot about the murky and tricky mess of laws and processes surrounding the issue of fair hiring and the even darker morass of employment testing.
Voila! A case made for the barking hyenas of political theater. Just what the mad doctor ordered. And of course, blog fodder.
The Other Steve
Ok, it does sound like a good decision. So maybe there was a problem with the test. If they can’t prove that problem, can’t show that the firefighters who did well got some sort of special treatment… I think it’s not fair that the results should be tossed out just because.
I say next year they should take a hard look at the test and redesign it to be right.
Luc
I just found this post from Llelldorin addressing the previous question.
OK, this somehow could be a reason to scrap a test; really convincing it seems not. Such inequalities exist for every possible exam; affordability always play a role in acquiring teaching materials (or not). I am pretty sure there have not been any dramatic advances in the fire fighting profession that would have necessitated learning material published just a few weeks before the exam – contradicts also the idea that the borrowed material was so valuable. Was the exam announced suddenly and unexpectedly? All the white guys passing the test had high ranking relatives in the fire department?
Scruffy McSnufflepuss
Sorry for fucking up that blockquote. I tried editing it, and somehow Balloon Juice managed to crash my entire computer.
The “blockquote” function around here is about as fun and easy as a do-it-yourself appendectomy.
gwangung
Jeez….the more I learn about the case, the more it appears that good, good arguments can be made for both sides.
That makes for lousy law, but great fodder for stupid pundits and idealogues…
Tsulagi
@Zifnab:
I’d go with that.
Skimming the decision, it seems New Haven weighted the test results 70% written, 25% oral, and 5% seniority. For the oral examination part which could bring subjective or racial bias into the equation, New Haven seems to have gone the extra mile including expense to make it fair. They brought in outside questioners, which could lessen any local old-boy bias, and 60% of them were minorities.
One of Ginsburg’s main points of contention was citing other cities weighting the oral exam portion 40% experienced more minorities qualifying for promotion. That may be, and if they want New Haven could go that direction in the future, but everyone taking this test knew the ground rules going in, didn’t challenge them in advance, nor challenging the score they achieved. They were all on the same field.
Ginsburg makes some points, but overall I’d agree with the majority. Great, pass the cannellonis, Scalia.
A Cat
The exams were oral and written which it is very easy for the grader to bias results unintentionally. For all we know they took points of for spelling and poor grammar. I’m not sure how important that is for Captain’s and Lieutenant’s, but maybe it is.
The passage rate was skewed more to the white firefighters, but there were so less non-white firefighters taking the tests so its within the realm of possibility the non-white firefighters did poorly because they just did poorly.
The main flag for test bias is that in the Cpt’s test the top 9 scores only had two non-whites while the Lt’s test had zero non-whites in the top 10. Again, there was a small number of test takers, but its unlikely when you have 9 of 34 passers of the Lt’s test being non-white that they make up zero of the top 10.
One last thing on the unintentional bias front, Ricci mentioned he had to buy the books the test questions were taken from. A simple way tests can be biased is during the collection of sources for test material. If the test company only solicits input from a certain group anyone who wasn’t in some way mentored or connected with that group would be at a disadvantage as they won’t have had the same level of knowledge of the material or could have even been taught different things.
LD50
You don’t understand. In WIngnuttia, a view held by 49% of the public—or even 70%, in the case of the public option—can be ‘extremist’.
And guess who gets to decide what extremism is?
‘Extremism’ here is purely defined by who you disagree with.
Brick Oven Bill
Post-college, there was a very rigorous program that I went through. As government workers, we were admitted to this program based on our race, and thirteen out of the one hundred or so were blacks.
But the program was run by a technical group, who did not see things in terms of race, but instead saw things in terms of engineering. There was a standard, and you had to get 2.5 out of 4.0, or you went home. This was hard science and engineering.
All thirteen blacks failed out in the first couple months of a year-long program. The last of the thirteen, a guy named ‘A’, tried pulling the race card and got violent. He was put up to Captain’s mast. I do not know what happened to him.
This was not a bad guy. None of them were. These were young men sacrificed on the altar of human biodiversity denialism.
LD50
Leave the gun. Take the cannoli.
LD50
Yeah, I would expect that making up a story might mean you were vague on details.
Comrade Dread
So it wasn’t the test per se that was discriminatory, but the environment. In which case, I would wonder why a city that is sensitive to possible lawsuits would not do more to make such materials available to all fire stations or sponsor study groups or workshops.
Which, as I said, if you’re using subjective questions, I can sort of see your point. But if you’re asking purely fact-based questions that demand an objective answer which are relevant to the position, I find the argument of cultural bias far less tenable.
This seemed like a situation that was going to court either way and could have gone either way.
gopher2b
Actually they weren’t. The Court of Appeals and dissent made it an issue. The SC (via Alito) said:
The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.
ThymeZoneThePlumber
Whoever has the keyboard at the moment.
ThymeZoneThePlumber
So, how long WERE you in prison?
Brick Oven Bill
My story is true LD50. My class was not unique. There was, and probably still is, a special 6-month school established to help black students pass this training by teaching them basic math and science before they show up. The New York Times did an article on my line of work, and implied that we were all racists for not having blacks among our ranks.
It was not for a lack of effort.
malraux
@Comrade Dread:
Language, situations, and references can be factual, yet still bias in favor of one group or another. I doubt if the questions were just of the nature of “To put out fire you should use: A) Water or B) Gasoline?” This wasn’t an entrance exam to be a firefighter, it was a test for promotion to a leadership rank. The purely factual questions would have been to be a firefighter.
Brick Oven Bill
My program was not prison ThymeZoneThePlumber. Blacks are not underrepresented in prison.
ThymeZoneThePlumber
Oh, for sure. Your blatant racism has long ago been established here.
Kirk Spencer
It is the two concurrences I found interesting.
Roberts concurred solely to rebut the dissent. The opening politely says, “the dissenters are idiots who are cherry picking cases to support a decision. Any reasonable justice who looks at everything would have no choice but to rule as the majority did.” I’m thinking this was a bit acrimonious back in chambers.
Scalia’s concurrence is, as noted above, a complaint about how Title VII forces discrimination against white people. It’s a Broder-like editorial that uses the case at hand as a springboard and has no bearing on the decision. I’ve thought over the past few years that Scalia seems to be losing it – he’s gone from sharp writing that tightly considers the case and it’s antecedents to rambling opinion pieces only loosely connected to events. This is more of the same. Bluntly, my first thought on reading it was that Scalia blackmailed Roberts: “Let me say this or I vote with the dissent.”
gopher2b
Read everything. Truly fascinating decision and commentary on modern race relations. Alito’s opinion really brings home the conflict here.
In the end, I side with the majority. I think on the micro-level (and certainly in a city like New Haven) no one is immune from discriminatory behavior. The law is meant to protect everyone, and that includes white males. The employer should do the best they can to create an objective, unbiased tests, but they have to live with the results.
Closing thoughts:
Ginsburg correctly points out that it is quite odd that the court would make a new rule and not remand to the district court for analysis.
Sotomayor (and her other justices) clearly took a pass on a difficult issue. That is unfortunate because, as judges, its their job to resolve these important issues. Its relatively clear she (and the others) did it because they had SC aspirations. I don’t know I would do it differently (probably wouldn’t) but I prefer a bit more courage in my justices.
ThymeZoneThePlumber
Oh yeah? So you like wearing striped pajamas all day every day?
Got it.
Brick Oven Bill
As has been your blatant Human Biodiversity Denialism ThymeZoneThePlumber. Your thought process is responsible for what happened to those 13 guys.
Race-based programs should be ended.
Little Dreamer
@Brick Oven Bill:
How are you so sure it was only for black people? Are you just basing this on your experience that a large number of black people were represented, or did you see some sort of mission statement/written proof that it was designed in fact for black people?
I think you’re basing this on circumstances.
I once attended GED training after dropping out of high school. I ended up getting my diploma instead of a GED, but most of the students in my GED training were black. That doesn’t mean the training was designed for black students. I’m white.
Zach
For those keeping score, this is the first time that Roberts sided against the government.
I fully expect never to hear a complaint about reverse racism or reverse discrimination again now that carping about how good the blacks have it is enshrined in judicial precedent.
LD50
Your GED program was blatant Human Biodiversity Denialism and should be ended.
Xenos
@Face:
The history of the cases that led to that now overturned standard show a lot of abuse of the testing processes so that what on paper looks like a fair test is anything but. This is because the big-city fire departments treated their jobs like entitlements to be passed on to friends and family members and people just like the current group of fire fighters.
You can’t expect a court or a law to come up with a system that eliminates all possible forms of cheating when you have a fire departments conspiring with selected applicants to game the system. The solution reached was that if the results are so unreasonably skewed that the likelihood of fairness is pretty low, then the test is thrown out and the fire departments have to administer the test again.
This solution, and I can’t remember if it was a statute, a ruling, or a consent decree, was considered soundly constitutional for a couple decades. There was plenty of precedent that the gang of five just tossed out in a rather activist opinion.
Brick Oven Bill
I was in a band with a friend, who was Mexican and successfully made it through the program, who taught at this school Little Dreamer. The class was, and probably still is, also open to all minorities who qualified for AA. Whites who would benefit from this remedial school would never have been admitted to the program in the first place.
The program was very competitive.
LD50
Was he a credit to his race?
ThymeZoneThePlumber
@Brick Oven Bill:
So you will be dropping your Birther nonsense?
Little Dreamer
@Brick Oven Bill:
You didn’t answer the question, HOW do you know that whites would not be admitted, did you see written proof of this or are you just making a judgment call?
Little Dreamer
AA programs are NOT competitive, wtf are you talking about?
ThymeZoneThePlumber
@Brick Oven Bill:
This would be your version of “Some of my best friends are negroes.”
DZ
Tests have been a problem for decades. For many years, the SATs included questions about regattas, debutante balls and other upper class crap about which ordinary people would know very little. Tests do have cultural and class biases depending on who created them. I haven’t read the test in this case so I can’t make a judgement about it, but tests should always be reviewed for biases.
Death By Mosquito Truck
So sick of white people..
gopher2b
@Xenos:
What standard did the court overturn?
Zifnab
@Brick Oven Bill: Sadly, for you, it is opposite day. Better luck next time.
LD50
@ThymeZoneThePlumber: POTW, and it’s only Monday.
Zifnab
@DZ:
Fix’d.
ThymeZoneThePlumber
@LD50:
Tip your waiter, we’re here all week.
;)
Davis X. Machina
Pure CYA by the city of New Haven: The city read Gregg v. Duke Power:
They’ve got a status quo of prior discriminatory practice. They’ve got exam results that show a clearly disparate outcome, and they know plaintiffs don’t need to show discriminatory intent, just discriminatory effect, to challenge the process. Cue the lawyers.
So they promote nobody. They punt.
Right up until they punted, and after, the courts hadn’t ever definitively said ‘You can’t punt’.
It’s hard to see a conspiracy when you can explain the same phenomenon invoking bog-standard organizational behavior. ‘Don’t get sued’ is the Prime Directive.
KG
Question: was it just on this particular round of testing that no minorities passed? Or was it on every round of testing? If it was just on this particular round, then I would suggest you have a sample size problem. If it is on every round of testing, then that may suggest that there is something wrong with the test itself.
Let’s say 50 people took the test, and of those 50, let’s say only 5 were minorities (that’d be 10%). Now, let’s say all five failed the test. But, let us also assume, on the next round of testing, that another 50 took the test, and again there were five minorities. And let’s say this time, all five passed. You now have an overall pass rate of 50% for minorities. The numbers will, statistically, fluctuate much more the smaller the group you’re counting because you’re dealing with such small sample sizes.
A sports analogy: Joe DiMaggio, Ichiro, and Ty Cobb are arguably the three best hitters in baseball history. But, I could probably find one game for each of them where they went 0 for 5, with three strikeouts. Those isolated incidents do not take away from their overall performance, or record. It just goes to show that if you cherry pick the data properly, you can distort the actual facts.
Punchy
I would love to see what amount of racial harmony still exists within the NHFD. I’m guessin not much.
Tsulagi
And apparently Commander EE of RSSF fame cheers just that finishing his BREAKING! and siren-flashing post…
Clueless to the end. Shorter EE: You should make decisions based on empathy for OUR feelings otherwise you’re an unsympathetic bad apple.
Luc
@ Scruffy McSnufflepuss
Thanks for the extensive info
All multiple-choice; this type of test really gives an advantage to the uninformed memorizers. It looks like it was a rather primitive test. But the discriminatory notion is purely based on the unwanted outcome?
Obviously it is all messy.
Punchy
Edited to remove repeat
Xenos
@gopher2b:
The standard I was referring to is the rule that if a test is given and a certain percentage of minorities take it and none pass it, the test is suspect, deemed invalid, and a new test must be administered.
I am being imprecise on the legal details because the last time I read up on the subject was a few years ago. But the key thing here is the legal posture of these firefighter cases does not line up perfectly with what was going on inside the fire departments. These departments were insular, nepotistic groups of ethnic whites that were determined to maintain their patronage systems.
Sure, they were racist, too, but simply coming up with a race-neutral test will not solve the racial disparities when the highly placed people in the fire departments are giving out sample answers to their relatives and friends, and are moving heaven and earth to ensure that the sons of a firefighter killed in the line of duty get a job that is considered part of the death benefits. When you have to have a family connection in order to get a passing grade on the test it is no surprise that none of the black applicants are passing.
The affirmative action laws were used to break up a corrupt system because they allowed federal review for this sort of thing. So maybe you can argue the affirmative action policies privileged minorities over other people unfairly excluded from getting the firefighter jobs. (Are there any Episcopalians in the New Haven fire department? I smell bigotry!)
Don
It’s astonishingly easy, in fact. And in fairness, it’s easy to write one that you don’t realize is flawed. This looks like a straight-forward question
When Denise went up the hill _ wore climbing shoes.
(a) he
(b) she
(c) they
(d) them
Till you come from a country where nobody is named Denise, so you have no preconception that it’s a woman’s name. If you do then you immediately know that it can’t be (a). If you don’t then you’re selecting from 4 answers, not 3.
Add one word and you remove this ambiguity.
When Denise went up the hill _ wore her climbing shoes.
(a) he
(b) she
(c) they
(d) them
It’s a tiny thing, but if you propagate it across a lot of questions you can end up with a percentage bias. Throw in cultural references and touchpoints and you really skew things.
Apple is to Skin as
(a) Peanut is to Shell
(b) Banana is to Orange
(c) Orange is to Juice
Okay, apples have skins and peanuts have shells, so A is obvious.. unless you were raised somewhere that didn’t grow apples.
Obviously you could take this to the point of insanity if you simply stare at every question and try to figure out ways someone might miss it. Which is why you can’t just write these things with an eye to fairness and declare that it’s probably okay. You’ve got to test the test, compare test results to known real-world outcomes, and look at how your test subjects tended to do on an individual question as compared to their overall competency.
b-psycho
@Brick Oven Bill:
...am I reading this wrong, or are you honestly suggesting that blacks are genetically inclined to fail in measurements of skill & intelligence?
If someone fails, they fail, whatever. But there is a HUGE gap between desiring a pure merit system & saying “of course non-whites fall short, they’re not white, silly!”
Death By Mosquito Truck
@Don:
Apples aren’t anything like my skin so clearly we’re comparing two wholly different things here. Peanuts come in shells so they’re sorta the same thing. Bananas and Oranges are both fruits so sorta the same thing again. Orange is a color and juice is something you drink so two wholly different things. I’m going with C.
Brian Griffin
I’m just glad that I don’t have a job where promotion depends on a test.
I’m pretty good at tests, but my company would suck.
Brick Oven Bill
New York Times on race and academic achievement b-pyscho.
We have stopped testing student’s IQs, but there used to be a one standard deviation difference. I know IQ tests are racist. I know.
LD50
@b-psycho:
Be nice to Bill. He’s terribly upset that no one is advocating befuddled, racist old white men.
Well, not enough people are advocating them, I guess.
DZ
@KG
Sports analogies can be good, but, no, not even arguably can Dimmagio or ichiro be considered among the top 3 hitters in basebal. Ichiro is closer than Dimaggio. Ted Williams, Stan Musial, Lou Gehrig, Tris Speaker, Babe Ruth and quite a few others, actually, were better hitters than Dimaggio.
Augustine
@malraux:
Steven Jay Gould FTW (RIP)
Brian Griffin
@Don: Sorry Don, but in your second setup, with one word added, the answer could also be©.
pseudonymous in nc
This was another of those cases where you can read the judgement, the concurrences and the dissent, and conclude that only SCOTUS could be the court of record here—which suggests that the Circuit did the right thing in punting.
‘sfunny, though, how the judges with the vowels at the end of their names felt the need to write separate opinions on the case for the guy with the vowel at the end of his name.
Death By Mosquito Truck
@Don:
After a second reading, it isn’t clear to me that the reference to skin means my skin. It could mean chicken skin or something else tasty and edible like that. So I’m going with a comparison of two tasty foods, B.
(Do people actually call the apple peeling “skin”?)
gex
@Zach:
Prepare to be disappointed.
passerby
@Brick Oven Bill: Your hypothetical is flawed if for no other reason than it’s your hypothetical.
Nice try though.
KG
@108: I was thinking more as batting average than hitting for power. Ruth is probably the top of the list, 714 HR and a life time .347 BA. But I think the point still stands.
Comrade Dread
@Don
Yes, and at this point, I would say that the solution to the first example you posed was the correct one (rewrite the test question) and the solution to the second sample was a solution that should have been applied to this case by the city: workshops and extra prep materials/time made available to all candidates OR don’t make the tests 95% of the criteria for promotion.
Make it 40 or 50% and factor in other things like seniority, job performance, peer reviews, and “other” factors so qualified candidates who pass a test but are not in the 90th percentile still have a shot.
Xenos
@Death By Mosquito Truck:
I think that is a regionalism. You get some odd ones that can skew these analogy questions.
Reportedly there was once an SAT question back in the ‘60s involving elevators and office buildings that was completely lost on most of the test-takers in Nebraska and Kansas. The kids from farm states had never seen an office tower, and as far as they were concerned elevators are where you store grain.
b-psycho
@Brick Oven Bill: Y’know, I didn’t see anywhere in that article anything about controlling for economic/family status. But I did see something about how when they stopped separating the kids by score the lower-scoring ones improved.
Basically, that didn’t “prove” that whites are naturally smarter than non-whites. It proved that poor kids tend to have a harder time at school, & deliberately drilling home to some kids that they’re considered inferior isn’t helpful to changing their situation—which most people knew already.
Kirk Spencer
@Brick Oven Bill:
First, no there was not one standard deviation difference. If there were, the “average” IQ score for blacks would be around 85 instead of the more typical 95.
Second, it wasn’t just the cultural cues of the test. Vanderbilt University’s Friedman identified what he’s calling the “Obama effect” earlier this year. In simple, he noticed that though the norm score for GREs is that blacks score a bit lower than whites, during Obama’s run blacks scores were indistinguishable (ie, equal to) the scores of whites. Further exploration raises the hypothesis (so far supported) that INTERNAL expectations matter.
We’ve stopped testing for IQ in schools for a lot of reasons. The biggest was that it didn’t do what it was expected to do. The tests measured what you knew against expectations based on the student’s age. Given an exciting or extremely effective teacher, whole classes could experience a surge in their IQ scores – something demonstrated repetitively. The tests are somewhat more valid for adults, accepting a lot of caveats and quibbles.
Brick Oven Bill
b-psycho, in reality what happens is when you separate the students by testing score in diverse parts of America-2009, the lower portion ends up performing like the Detroit or District of Columbia public school systems. The graduation rate in Detroit is 21.7%, and most of these graduates are probably illiterate.
This is why President Obama segregates his own family from the District of Columbia school system. This is also why the Democratic leadership stopped giving students from the District of Columbia school system access to the schools where their children attend, by cancelling the voucher system.
Averages do not apply to individuals, and there are surely talented students in the District of Columbia school system. The Republican Party’s policy was to give these achievers access to private schools. The Democratic Leadership wants nothing to do with them. The Press Corps is silent, because their kids go to those same private schools.
These people play by a different set of rules than the firemen in New Haven.
Kirk Spencer
@Brick Oven Bill: President Obama couldn’t possibly be separating his kids for security? Nah, how dare I think such a thing. (sarcasm)
As for vouchers, the main reason they were stopped is that they didn’t work. It’s a simple principle: Observe, make a recommendation, test the recommendation. If the recommendation works, continue and expand. If it doesn’t, stop and try something else. The voucher supporters had a chain of things the vouchers were supposed to make better. The only thing that happened was the private schools got more money.
Kilkee
@b-psycho: I had a similar situation. I grew up in a lower-class working white family, and when I took the LSATs I still had only the vaguest notion what a “mortgage” was. I knew it had something to do with buying a house, but since absolutely no one I knew owned a house, I found it scary and disconcerting at least to have to answer questions about these mysterious things. Years later when I taught a section on con law, I used to hand out an “IQ Test” of my own design that was based completely on my own cultural background: male, Catholic, mix of Irish and Italian influences, some blacks in the area, petty crime tidbits, etc. When you throw dice and snakeyes are on top, what’s on the bottom? (Boxcars). What’s organdy? Fabric? A French province? What’s a “sky?” Which of the following men have NOT coached Notre Dame? Not surprisingly, the results broke down rather nicely along gender/class/racial/ethnic lines.
b-psycho
@Brick Oven Bill:
Like I said, separating them like that isn’t helpful. We already know that, who is arguing otherwise?
Did I mention I’m not a Democrat, could give half a fuck what they think, and actually disagree with them on education anyway?
Now you’re changing what you’re saying. Is it genetics (read: darker = dumber, apparently), or is it that their schools tend to suck?
Brick Oven Bill
Obama’s children went to private school in Chicago as well Kirk, long before he became a US Senator. While he was attending Reverend Wright’s church, his kids were going to the University of Chicago’s Laboratory School, a place U of C Professors use to segregate their kids from the reality of the public school system on Chicago’s south side.
I have previously posted data that there was on average one school child shot daily in this south side school system and suggested that DHS look into it. Democrats are very hypocritical when it comes to their own children.
b-psycho
@Kilkee: There’s probably people now that HAVE a mortgage that can barely comprehend what it is, so that doesn’t surprise me.
Ironically, as a black man born & raised in suburban Iowa whose family was firmly upper-middle class until high school, I’d probably do pretty shitty on a stereotypically “black” test. I don’t even watch BET!
Xanthippas
Um, since these accompany just about every one of these posts about Supreme Court/legal stuff, maybe you guys need an attorney blogger?
Mary
@Luc: 40% of the test was oral.
Kilkee
@b-psycho: Hmm. So I guess you wouldn’t get the ‘sky’ question? :) (Actually, that’s only a ‘black’ question as filtered through the 1970s Shaft/Boys Club/Massachusetts cultural filter. Maybe the only black kids who called a hat a sky lived around the corner from me.)
Groucho48
Decades ago, blacks scored significantly lower on I.Q. tests than whites did. As time passed, the scores of whites stayed about the same while the scores of blacks rose steadily. If trends continue, in 50 years or so, blacks will score significantly higher than whites.
So, either blacks are evolving at a tremendous rate, and, eventually, whites will suffer the same fate as Neanderthals, or, something else is going on. Being white, I prefer to think something else is going on.
LD50
Yes, and it was revealed as bullshit. Next question?
When They’re Both Right « Voting While Intoxicated
[...] When They’re Both Right The Supreme Court ruling on one of the more loudly discussed cases that Sotomayor ruled on while on the appeals court was released. Both were right. [...]
cj
I still want to know what on the test supposedly gave the white firefighters an advantage over the minority firefighters.
Will they release the test to the public since they will be constructing a new one?
Jrod
Since BoB has revealed that he once worked for the government, according to what he said back during the Publius affair he’s obligated to reveal his true, full name.
Let’s hear it, BoB. Stop being a coward and live up to your own standards. Give us your real name.
Dayv
cj: read the comments before you post. As noted above, and in the dissent, at least one possible factor was the nepotistic availability of study materials.
cj
@Dayv:
Umm why do I need to read the comments before I post when I am commenting on the post NOT the comments?
I understand that one of the factors could be someone knowing someone and their in, but that’s not what I am asking.
I want to know if the institution( that is supposedly an independent one) that gave the firefighters the test will release the test material to the public.
Now do you or anyone else have a link to that test material?