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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