We have two blogs today on the DoJ demand that Dayton lower its testing standards so more black police can be hired. As Professor Jacobson notes this seems to violate the Supreme Court decision respecting the New Haven firefighters.
As Jacobson explained at the time:
In Ricci, white New Haven firefighters claimed that they were the victims of discrimination. The City of New Haven had utilized a racially-neutral officer qualifying exam, prepared by a company which specializes in firefighting tests, specifically designed to avoid inherent or implicit biases which might discriminate against minorities.
New Haven had no intent to discriminate in administering the test, and had an actual intent not to discriminate. To the extent there was a fear of discrimination lawsuits, that fear was sufficient to result in a racially-neutral qualifying exam. The result of the test, however, was that no blacks would be promoted (using New Haven’s criteria for appointment in which test scores played an important part), but 17 whites and 1 Hispanic would get promoted. New Haven, fearing a lawsuit claiming racial discrimination under a “disparate impact” theory (meaning the results were racially skewed regardless of intent), nullified the results.
The U.S. Supreme Court, however, rejected the view that fear of disparate impact lawsuits was a sufficient ground upon which to invalidate an otherwise racially-neutral test. The Court held that in order to justify its actions, New Haven would have had to prove that there were a strong baisis for believing that it actually would have been liable for disparate impact liability had it not invalidated the test…
The Court held that since New Haven’s decision explicitly was based on race, the decision presumptively was an invalid violation of discrimination laws, unless there was a legally valid justification. The Court held that regardless of New Haven’s “well intentioned or benevolent” intent to protect itself against discrimination lawsuits, such conduct constituted discrimination without legal justification…
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Hard to imagine a more cogent example of the liberal Left’s world view than the idea that a empirical test is itself somehow racist. Since the Left ‘knows’ we are all equal, any group that consistently fails must be consistently being discriminated against.
Since white players in the NBA don’t fare as well as their black counterparts, there MUST be something wrong, no? Well, it don’t work that way; you have to be non-white to get this special exemption where the laws of reality itself break down.
Our bureaucracy needs a straight jacket.
James – the terminology here is important. The law does not require an illegal test to be “racist.” There is a significantly lower threshold. Racial disparate effects or impact are generally satisfactory to attract DOJ attention and court rulings for the United States. So yes, an objective test can indeed violate the law.
Clarice – that the DOJ policy violates Ricci comes as no surprise to anyone who has worked in the Civil Rights Division. Both Loretta King and Steve Rosenbaum were on the brief for the United States in Ricci. These two individuals are adept at using the law when it suits their need and ignoring it when it doesn’t. Moreover, they will argue a point regardless of what the law says if any plausible argument to the contrary can be created. It will be up to Dayton to push back and have a judge slap them down. Until that happens (if it happens) they will get away with it. Everyone who thinks that the DOJ policy in Dayton won’t survive are fooling themselves. Nobody will challenge it, and even if they do, it will take weeks, months or years to grind down Loretta King’s commitment to race based preferences and get a judge to slap it down. Remember, King has been around a long time and has even been sanctioned (along with others) a half million dollars in the past for advancing race based legal arguments contrary to the law. She was subsequently promoted.
Perhaps some good soul will see clear to represent the applicants who passed the test but will be out of luck if DOJ has its way.
The Department Of Justice has announced today, blacks are stupid.
Do note that the Dayton article also stated that the DoJ has pushed this in other cities as well so it is more than a one time occurance. Wonder where those other cities were. And it looks like the Dayton Fire Department will be doing the same thing this summer.
As somebody pointed out — it might have been the Department of the Census — the country is 79% white. I wonder if this will be reflected in the elections next year.
79% white won’t save us……… approximately half of that is female…….. and white women have long been in the habit of self destruction. at least a good number of them………..
Look even the Dayton NAACP is opposed to this. The displaced test passers should sue. Perhaps even citizens of Dayton have standing to sue on the grounds that the federal govt is sticking them with a less qualified police force whose errors will cost them in poor quality law enforcement .
The civil rights law should be amended to bar disparate impact lawsuits, if they do not also have evidence of actual discriminatory conduct, other than just a numerical disparity. Disparate impact should be able to provide probable cause for an invistigation, but the investigation must then provide proof of actual discriminatory conduct, beyond disparste impact, to justify a discrimination suit.
New Motto:
“Qui Pro Domina Atrum Justitia Sequitur”
One assumes that Mr. Holder is just taking care of “his people”.
I understand the debate about disparate impact liability (neutral rule combined with correlative impact on minority group–unknown if reverse discrim applies here at all, btw). But, that disparity alone is rarely the end of the issue. The employees also have a burden to show that another business rule or practice is equally effective as the challenged one. If they do, and the employer refuses to adopt it, then liability attaches. While in theory I accept that this shows a discriminatory motive (e.g., why doesn’t the employer adopt such a reasonable policy/rule).
Regarding Ricci, my reading of it is that all employers would now adopt affirmative action plans to avoid damned if you do and if you don’t activity. And Justice Scalia predicted this in the 90s too (Johnson v. …Santa Clara…).
Fwiw, I disagreed with the decision in Ricci, not on their legal reasoning, but on the majority court’s interpretation of the facts and evidence, like skipping over uncomfortable facts.
I honestly and truly do not understand how any written test composed using standard English could possibly exclude or discriminate against a person based on the color of their skin. Is there some secret version of English that only white people know and speak? Are there words and subtle distinctions of grammar and punctuation that are systematically hidden from anyone whose skin color is darker than french vanilla?
A standardized test is the closest thing to a double blind experiment that you’re going to get outside of a clinical setting. The person crafting the test does not know the race or background of the person taking it. The person grading the test does not know that person’s background either. A multiple choice test graded by computer is even less vulnerable to being subjectively graded. The notion that there is any sort of illegitimate discrimination going on is patently absurd.