Frank Ricci -- a firefighter in New Haven, Conn. -- spent months listening to study tapes as he drove to work and in the evenings, preparing for a promotional test. It was a once-a-decade chance to move up to a command rank in the fire department.
Ricci earned a top score but no promotion.
The city had coded the test takers by race, and of the top 15 scorers, 14 were white and one was Latino. Since there were only 15 vacancies, it looked as though no blacks would be promoted.
After a racially charged debate that stretched over four hearings, the city's civil service board rejected the test scores five years ago and promoted no one.
"To have the city throw it out because you're white or because you're not African American is insulting," Ricci said when he and 19 other firefighters sued the city for racial discrimination.
Something you'll notice over the years is that controversies over the use of quotas in fire department promotions are much more heated than controversies over the quotas that all big city fire departments use in their initial hiring. That's because the applicants/victims of the initial hiring quotas aren't told they are victims, they're just sent a rejection letter. For example, a friend of mine applied to be a Chicago fireman once -- I saw him on the TV news standing in line with hundreds of other guys to take his test. He got rejected, even though he was an Ivy League graduate. I'm not sure that he would have been a great fireman, but it was kind of a joke that he supposedly didn't score over the cutoff.
But what can mere applicants do? Nobody will tell them anything about how they did because they are just random individuals. They're not in the union, they don't know any higher-ups or any clerks, they're nobodies. Whereas firemen who have been waiting for years to be promoted have lots of ways of finding out what their scores were, so they raise a stink.
Their case, scheduled to be argued this month, is the first to come before the Supreme Court under Chief Justice John G. Roberts Jr. that broadly raises the issue of race in the workplace. The outcome could reshape hiring and promotion policies for millions of the nation's public employees -- and possibly for private employers as well.
Roberts, leading a five-justice majority, has made clear that he believes it is time to forbid the use of race as a factor in the government's decisions.
The Obama administration, taking its first stand on race and civil rights, sided with the city officials and said they were justified in dropping the test if it had "gross exclusionary effects on minorities."
I'm shocked, shocked to learn that the Obama Administration isn't on the side of equal treatment under the law, but is instead demanding favors for blacks.
While blacks make up about 31% of New Haven's 221 firefighters, 15% are officers -- eight of the department's 42 lieutenants and one of its 18 captains. ...
What a completely remarkable pattern! I'm sure no other organization in America has fewer blacks the higher the cognitive demands of the position.
These cases highlight a conflict in federal civil rights law.
The Constitution and Title VII of the Civil Rights Act of 1964 say employers may not discriminate against people because of their race. However, employers also have been told they may not use hiring or promotional standards -- including tests -- that have a "disparate impact" on minorities.
The court adopted this rule in a 1971 case. Congress added it to federal law in 1991. The new provision said employers may not use a job standard that has a "disparate impact on the basis of race" unless it is "required by business necessity." For example, it is not certain that the knowledge tested by the firefighter's exam was required to be a lieutenant in the fire department.
In New Haven, the city's lawyers cited this "disparate impact" rule as their reason for scrapping the test scores in 2004. ...
Payton emphasized that New Haven had not rejected the white firefighters because of their race, but rather rejected the use of the written exam as the sole determinant of who would be promoted.
"New Haven ought to be able to go back to the drawing board," he said, to devise a fairer promotion system.
Yeah, because clearly the problem is totally isolated to New Haven. As we all know, in lots of other cities, officials have figured out ways to promote blacks in fire departments at non-disparate rates without raising the chances of citizens dying horrible flaming deaths. Like in ... oh, well, I'm sure I'll think of them real soon now. There's got to be a few places, right? I mean, at least one?
To be serious, there aren't any. But you aren't supposed to notice that. To notice the Fundamental Constant of Sociology gets you Watsoned out of polite society. So, we're supposed to act like it's a complete surprise every time we run into exactly the same situation.
Yale law professor Drew Days, a former chief of the Justice Department's civil rights division, said he was surprised the justices agreed to hear the case of Ricci vs. DeStefano. Now that they have, he added, a ruling for Ricci "could have very far-reaching consequences because it may well apply to all employers."
Wouldn't that be an implausibly constructive response to the economic crash? To say, okay, well, we've had 40 years of affirmative action, but we can't afford it anymore, so it's time to get serious and just promote on merit? The odds of that happening: one zillion to one.