Comments

1. Lxy wrote:

   If nothing else, it will be very interesting to see how this decision impacts the Sotomayor nomination.

   Posted 29 Jun 2009 at 10:44 am ¶

2. Amused0472 wrote:

   I think the decision is wrong. No one was promoted, so the firefighters cannot say they were denied a promotion because of race. Now employers will be forced to keep tests that have a disparate impact on particularized groups.

   Posted 29 Jun 2009 at 10:45 am ¶

3. B wrote:

   I co-sign with Amuesdo472. Everything I’ve read about this case makes it a no-brainer that these white firefighters had no case. I’m flabbergasted.

   Posted 29 Jun 2009 at 10:50 am ¶

4. E Grant wrote:

   Why would employers be forced to keep slanted tests? If they adjust and balance future tests prior to having candidates sit them, wouldn’t that prevent this type of conflict?

   Now, if you’re saying there’ll be little effective legal pressure to make employers change tests, yeah, that’s certainly the case.

   Posted 29 Jun 2009 at 10:59 am ¶

5. G.D. wrote:

   Even though the court broke along ideological lines, it was a really messy case. Nicole Allan and Emily Bazelon have done a bang-up job putting it into context, with lots of background and interviews with white and black firefighters in New Haven.

   http://www.slate.com/id/2221250/entry/2221252/

   Posted 29 Jun 2009 at 11:01 am ¶

6. Evan wrote:

   The headlines will read “SCOTUS Overrules Sotomayor”. Conservative political groups will have a field day with this one.

   Hmmm…I should check out Michelle Malkin’s blog for some interesting comments.

   Posted 29 Jun 2009 at 11:09 am ¶

7. Deena wrote:

   Talk about activist judges. The appeal court that supported New Haven’s decision was making that rationale based strictly on the laws on the books. It’s not just about this case, or these firefighters, it’s about how the law will be interpreted.

   I’m not surprised by this, but I am pretty ticked off.

   Posted 29 Jun 2009 at 11:16 am ¶

8. Marcy Webb wrote:

   The question nobody is asking is: How many white firefighters were more qualified than the firefighters who filed the lawsuit?

   Posted 29 Jun 2009 at 11:40 am ¶

9. LJ wrote:

   Many in this country including justices on the Supreme Court just don’t get it. In the past, in the present but hopefully not too far in the future, minorities have faced discrimination that impacts their ability to succeed in today’s atmosphere. Many in the majority believe that “they need to work harder.” This is why many will never overcome!!! Yes, some can work harder and succeed to heights (President Obama) but many are left behind disempowered, economically unstable and without quality education. All of this plays into success on standardized exams and until there is an equal playing field (and no the Civil Rights Legislation/Affirmative Action did not level the field) there will never be equality of opportunity (and many more will sue for “their violated rights.”

   Posted 29 Jun 2009 at 11:42 am ¶

10. Amused0472 wrote:

    @ E Gant

    This employer tried to throw out a “slanted” test and now are liable for discrimination. You can’t usually examine the effect a test will have until people take it and crunch the numbers on effect. Now employers will be fearful. Why do they have to keep the test an tweak it.? Why can’t they throw it out and adopt an unbiased one without being fearful of litigation?

    Posted 29 Jun 2009 at 12:03 pm ¶

11. Matt E. Allen wrote:

    You hit the nail right on the head, LJ.

    Posted 29 Jun 2009 at 12:31 pm ¶

12. kate wrote:

    this is so upsetting I couldn’t be more disappointed, but also less surprised…

    Posted 29 Jun 2009 at 12:34 pm ¶

13. cb3n wrote:

    Really very depressing

    Posted 29 Jun 2009 at 1:19 pm ¶

14. Miles Ellison wrote:

    This shouldn’t have an effect on Sotomayor’s nomination. Conservatives will say that she was reversed by the Supreme Court, but 4 justices affirmed her ruling. If Sandra Day O’Connor had not retired and been replaced by Alito, her ruling would have been upheld.

    I think that this case has more dimensions than what’s being screamed about by privileged white commentators on television. Less qualified minority candidates were not promoted instead of white ones, but that’s the spin we’re hearing. Nobody got promoted. The real issue here is that that whites think that merit ONLY applies to them. Any non-white person who earns a promotion is a product of reverse-discriminatory affirmative action. That is the attitude that is driving this reverse racism hysteria.

    Posted 29 Jun 2009 at 1:54 pm ¶

15. Bobby wrote:

    What is troubling is that the Supreme Court suggests that laws or practices that discriminate in fact, but were not intended to, now require a “strong basis in evidence” to prove. Can you imagine trying to prove that crack cocaine sentences are racist? Now every defendant can argue that he didn’t intend to discriminate and get away clean.

    Posted 29 Jun 2009 at 2:04 pm ¶

16. E Grant wrote:

    @Amused0472

    Wouldn’t there at least be some indication, or method to detect slanted tests, that doesn’t involve giving employees a set of results and then revoking them? I ask non-rhetorically–there’s probably a consulting opportunity here, if people aren’t already doing this.

    Asking for a retest because you don’t like the statistical skew of the results would always be asking for trouble, I’d think. I’d argue that what the department did in this case was far from ideal, and other organizations must be looking for a way to avoid this kind of fiasco.

    Posted 29 Jun 2009 at 2:13 pm ¶

17. Joy wrote:

    It is disappointing. This was not a good case and the department could have done things differently, as E. Grant said.

    Hard cases often make bad law and I think that this very un-ideal case may cause a setback for affirmative action and non-discriminatory employment practices.

    (Like Miles said, I don’t think this will make or break Sotomayor.)

    Posted 29 Jun 2009 at 2:37 pm ¶

18. Elton wrote:

    I hope this doesn’t add fuel to what seems to be a growing “reverse discrimination” movement. If it does, I will do my best to fight it.

    Any firefighters of color out there who can give us some perspective on this? Anyone have a copy of the actual test?

    Posted 29 Jun 2009 at 2:38 pm ¶

19. Amber wrote:

    I think it’s so interesting that one of the firefighters keeps crying about how much money he had to spend to get a decent grade and yet can’t see that the test might be flawed.

    Posted 29 Jun 2009 at 2:49 pm ¶

20. gatamala wrote:

    G.D. that link had some good examples of how segregation and civil service discrimination intersect with class to exclude a segment of society from having a chance. That’s the not-so-blatant (to 5) example of systemic racism.

    In addition, the comments of the leader of the Hispanic firefighters’ union illustrates the transformation to a black/non-black U.S.

    Posted 29 Jun 2009 at 3:10 pm ¶

21. blah wrote:

    The Hispanic Firefighters’ Union statement sounds like the don’t rock the boat and you may get some perks mentality that some minorities have.

    Posted 29 Jun 2009 at 4:57 pm ¶

22. Kim wrote:

    At first blush this seems like a classic case of, “I don’t think there’s much division in the squad over race… but us white folk, we were definitely discriminated against.”

    I just read the Slate link; it was a very well-written article.

    @ Amber
    Yeah, that’s willful ignorance for you. I mean, he DESERVES the good score he got on the test, right? Because anyone who doesn’t throw money at his problems is just lazy.

    Posted 29 Jun 2009 at 5:29 pm ¶

23. inkst wrote:

    The most disheartening thing for me in cases like this is that the Ricci’s of the world and their supporters simply seem unable to grasp the idea that affirmative action policies are not “reverse discrimination.” There is a huge gap in understanding and communication that ends up reigniting or fueling already existing racist feelings.

    In my opinion (which is solely based on the little I’ve read about the case in the mainstream media), Ricci et. al. could have had some kind of case if they had said that they were simply mislead and that that was unfair. It does suck to prepare and pay in time and money for a test that ends up getting thrown out when you were told that it was for a promotion. People shouldn’t get jerked around like that. Period. But it in no way means that they were “unfairly denied promotions because of their race.” That finding is ludicrous.

    Posted 29 Jun 2009 at 6:22 pm ¶

24. The Kid wrote:

    The problem here is that we romanticize underdogs to the point that everyone wants to be the underdog, but to be the underdog you have to have a feeling that the world is out to get you, that you are the victim. you ask most people, be it black, white, latino, or asian, and they will likely tell you that they have the worst, whether true or not, they believe, and they don’t like to be told that it is not true. Psychology comes into play here. But so does the way this was handle. First of all, where are these tests, why were they destroyed, this was clearly a bad decision to destroy them. Second, the way that we handle affirmative action in this country is completely unproductive. We are only creating a band-aid, a dirty band-aid at that. Affirmative Action has to be based on opportunity, not results. What has to be done is not wasting energy and resources on whether these fire fighters were the result of not-so-blatant systemic racism because they didn’t go to schools that were as good or as well funded as their white counter parts and therefore weren’t privileged to some of the knowledge. (now in no way am I saying this is pass on overt racism in hiring and promotion practices, actually there needs to be stronger laws in place for that). But what needs to done is to stop this at the root of the cause, at the education level for these children that will one day be these firefighters. Affirmative Action should be about opportunity, it should be about giving an equal chance at the beginning, not catching them up at the end. It should be about a minority kid in college being able to say, to some that told him he only went there because of Affirmative Action, ‘that the reason he went there and not another white person is because once given the same educational opportunity as the other white person, he succeed and then some over that other white person. More pressure has to be put into rescuing our urban school systems. We need to be proactive, not reactive.

    Posted 29 Jun 2009 at 7:56 pm ¶

25. Nin wrote:

    Choosing a bland technicality over factual evidence and the bigger picture and context of the law, well, SCOTUS, I am disappointed.

    This could be a devastating moral precedent. I’m only glad Justice Roberts didn’t co-sign Alito’s activism here.

    Posted 29 Jun 2009 at 8:02 pm ¶

26. Meg wrote:

    There’s a bit of a similarity (but opposite direction) to a school entry test here in australia where basically there are some public schools where students are admitted on test performance alone. There are more applicants than spots and in recent times there’s been persistent whinging about how many asians were admitted via the test and it was actually changed to try and placate those who believed asians had an unfair advantage. So they added a written english component of the test to trip up those pesky asians. But there’s still complaints b/c this hasn’t changed much and apparently evil asian parents handcuff their children to study materials 24/7 while other kids are outside playing. I resented this argument because it became split on ethnic lines when really it was more to do with problems in identifying academically gifted children (there are other schools for arts/sports) without giving advantages to those who had money/time for extra tutoring. The validity of the test used to hang on the claim that ‘you can’t study for this test’ but as soon as demographics changed there were concerns that asians couldn’t simply be there on merit they must be doing something to take the spots from more deserving students.

    So i have to admit on hearing about this case i didn’t quite get how a test could be ‘racist’ all by itself. If the ‘white advantage’ is because they knew what to study earlier than minorities than that should be called cheating. The Slate article was really helpful in pulling out the lack of fairness, and it seems, lack of city foresight in coming up with a better way to promote when there are a greater number of qualified applicants than there are promotions. IMO it also fairly showed the different viewpoints without reducing one side or the other to a bumper sticker argument. I think part of the difficulty is that the white guys feel like they worked hard to get in line for a better job (i wouldn’t look down on someone who spent money for extra tutoring) – they don’t see the history of the fire dept in the same way the minority candidates do and the obstacles that family history may have removed for them but put in front of someone else. Although I was reaching for benefit of the doubt for these guys, I see a real problem that a lot seem to retreat back to mostly white communities – surely the city should offer preferential treatment in some form to those who come from the communities which are served by the fire dept.

    Posted 29 Jun 2009 at 8:18 pm ¶

27. The Kid wrote:

    Another way to solve this problem is to have firefighters be from the city New Haven. You can only be if you are from that city, and once you leave you must retire or change Fire Departments. That would go a long way.

    Posted 29 Jun 2009 at 9:06 pm ¶

28. km wrote:

    A comment from a reader on the NYTimes.com site. It gives a good summary of the test construction

    “From reading the opinion, one may conclude that the test was fair. The material was taken directly from the source material (including noting when in the text the question was taken from). Additionally, the majority of the assessment panel was minority (66%). The job analysis questionnaires (which largely helped to determine the type of exam questions) were largely taken from minority officers who were part of the New Haven Fire Department. The test was written at a 10th grade reading level and the qualifications for the positions included the need for a high school diploma. The test was 60 percent written, and 40 percent oral, as per the collective bargaining agreement with the union. The majority of candidates were white, so a largely white make up of the results were not out of the ordinary.

    The CSB listened to 3 experts. Two of these “experts” didn’t even read the exam, and one of these two even offered his company’s services in devising a new exam for the board. The only expert who actually read the exam was a fire expert and former fire chief who was black. He said that the test was fair and was taken straight from the material.

    From these facts, the exam was prepared in a way as to eliminate as much racial disparity as possible. The department wasn’t even allowed to see the final exam before the test to prevent cheating. I don’t see how this test could be any fairer. I believe the Court ruled the correct and logical way”

    My understanding is that most fire departments’ pay scales are higher for lieutenants, thus affecting pensions and retirement decisions. Since nobody was promoted all those who passed failed to achieve these monetary benefits. No other test was performed so this has been in limbo for 6 years or so. It would seem that those lower on the seniority ladder would be impacted also and that would include ffs of all races.

    If Brazelton is to be believed that only “fire buffs” (which is an incorrect term to use in this context) and “best memorizers’ succeeded at this then the arguement goes back to who prepared well enough. I know Ricci and his dyslexia is an easy soundbite but it goes beyond that.

    I think where we all need to focus our energy is in ensuring that the education system that is offered is such that everyone has a valid chance at success. That would seem far more productive.

    Posted 29 Jun 2009 at 10:01 pm ¶

29. PatrickInBeijing wrote:

    We end up with “tests” to try to decide promotions not because the tests are good, but because we know that other methods are biased. So, we decide that a “test” is the best way to determine whatever abilities we are looking for in a fire lieutenant.

    The Supreme Court is wrong, no surprise there. Roberts has stated that he thinks “racial” issues are made too much of, and he seems determined to role back all of the legal gains of the civil rights movement by himself (if he can).

    In the South, where I grew up, there were voting tests. The story was that VOC were asked to spell words like chrysanthemum and disenstablishmentarianism (which their testers often didn’t even know the meaning of), while white votes got the hard words like cat and dog.

    Other ways to proceed in selecting leaders. Require them to take and pass courses in leadership. Have a board made up equally of firefighters according to their percentage in the city or department or some agreed on formula (agreed on by all). A formula that would encourage consensus and cooperation in the selection of leaders.

    In saying whether the tests are fair or not, we need to know more. Which questions did folks miss? What answers did they select that were wrong? Put all the tests and test results up for everyone to see.

    I am often asked to review English tests. I usually find questions with multiple correct answers, or in which the correct answer is wrong. Sometimes the questions don’t make any sense.

    When we compare tests results from two people, we also need to ask are the differences significant? (One point below a certain level can change your school (here) for instance.) Do we really believe that a one point spread between candidates is significant? How about two? How many?

    Are we convinced that being able to pass tests will make you a good leader? Why?

    We have a long way to go….

    Posted 30 Jun 2009 at 4:27 am ¶

30. Angela wrote:

    What I find particularly disheartening about comments about this case that I see around the web is that so many people are basing their opinions on summaries and haven’t actually read the facts of the case. When you read the actual case, it becomes clearer why the city took the actions they did. The tests were problematic. Having noone from the department view the exam doesn’t necessarily guarantee fairness; it does eliminate the ability for the Fire Dept. to validate the questions and clarify terminology so it is inline with terminology used in New Haven as opposed to other departments. There were other problems with the type of questions and the problems seem not to stem from a lack of ability to read the test but other problems.

    The summaries that are out there really reduce the facts and make it seem as if the city through out the test because they didn’t like the result. Instead the city actually conducted hearings and heard from various stakeholders which helped to illuminate that the test had seriously flaws–in particular that there existed better and fairer tests for these positions and that the city out of expediency or laziness did not really determine if the construction of the test was fair or if the test actually even tested the skills necessary for the positions.

    Posted 30 Jun 2009 at 9:00 am ¶

31. RCHOUDH wrote:

    Here’s an article talking about the confusion employers will exhibit when trying to figure out whether their policies discriminate or not:

    http://news.yahoo.com/s/ap/20090630/ap_on_go_su_co/us_supreme_court_firefighters_lawsuit

    Posted 30 Jun 2009 at 12:31 pm ¶

32. km wrote:

    This is from their lawyer . From a local newspaper, The New Haven Register. It does highlight that some minorities did pass the exam. This seems to be getting lost.
    Warning, it’s long

    Opinion
    Apology owed city firefighters
    Thursday, June 4, 2009
    By Karen Torre
    IN a Forum column, New Haven Corporation Counsel Victor Bolden gave a grossly
    inaccurate account of Ricci v. DeStefano.
    The city advanced a new defense of the firefighters’ race discrimination case, which is
    before the U.S. Supreme Court, contradicting its admissions and arguments in lower
    courts. That was annoying enough. It now circulates this confection in the media.
    Bolden said two of the 50 minority candidates for promotion, neither black, would have
    been eligible for promotion based on results of a 2003 exam. That is false.
    Fifteen minorities were eligible. Of these, five qualified for promotion in 2004, with
    others eligible for additional vacancies during the two-year life of eligibility lists. One of
    the successful black candidates submitted an affidavit expressing his disapproval of the
    city’s actions.
    The city also asserted that racial disparities in the 2003 exam were more “severe” than in
    prior tests. In fact, the evidence showed they were remarkably consistent in
    distinguishing among those who took previous tests together.
    The few unsuccessful black candidates who complained the loudest and demanded a
    repeat of the competition are individuals who failed or barely passed previous exams. Are
    all tests they take flawed? Their refusal to accept responsibility for their failure hurt
    many, including fellow minorities. All were given the equal opportunity the law requires.
    City officials blocked production of their own experts’ report validating both tests and
    later had the gall to assert they acted in good faith. They solicited three other experts to
    address the civil service board in 2004, but none could impugn the exams.
    One of the experts was a highly credentialed fire and homeland security official who was
    black. When he advised that the tests measured for knowledge commanders should
    possess, the city’s lawyer turned on him.
    The city contacted a rival of the company that developed the 2003 exam, which
    suggested an alternative testing method that might produce better racial results, although
    it did not study the exams or validity data. The suggestion was discredited by its own
    publications. Not surprisingly, the city never used it as an expert witness in court.
    There is a reason Lt. Matthew Marcarelli scores at the top in every exam he takes and
    Firefighter Frank Ricci succeeded despite his dyslexia. They are dedicated to excellence.
    Another key fact, which the city and the National Association for the Advancement of
    Colored People take pains to avoid publicizing, is that a minority-dominated group of 30
    high-ranking fire service professionals from around the nation rated the candidates in the
    situation-based phase of both exams. The city admitted the group’s ratings were fair and
    accurate. To suggest they discriminated against fellow minorities is ludicrous.
    The city and the NAACP dishonestly omit this fact from their rhetoric and will not
    explain how these job-related exams were unfair to some, but not all, black firefighters.
    The exams did not, as Bolden asserts, “discriminate on the basis of race.” They
    discriminated on the basis of qualifications. The civil service board deadlocked, but its
    chairman, a lawyer, voted to certify the eligibility lists, stating the evidence called for it.
    The city admitted in the lower courts that it had no basis to impugn the exams. Before the
    Supreme Court, city lawyers backpedaled and admitted exam “flaws” for the first time.
    In a carefully parsed statement, most charitably described as cagey, Bolden implies that a
    “group of testing experts” advised the city that the exams were indefensible. Hogwash.
    What Bolden omits is that this “group” is but five individuals who had never been
    involved in this case.
    These individuals never even saw these exams, much less the job analyses and scoring
    data, and had the gall to disparage the reputable testing company that did possess this and
    other critical information.
    One of them had provoked multiple litigations in Bridgeport with a controversial practice
    of race-based adjusting of exam results.
    Mere weeks before the Supreme Court hearing, they filed a brief supporting the city. It
    does not represent the views of their professional organization and was insulated from
    cross-examination.
    Of the thousands of such experts, these few chose to criticize a reputable testing company
    whose exams have never been invalidated in court and are well defendable, according to
    respected leaders in the industry.
    City officials admitted they never expected the case to get to the Supreme Court. The
    evidentiary record in the lower courts may be problematic for them, but that is no excuse
    for attempting to concoct a new one and whipsaw the courts with new arguments.
    Instead of offering a freshly fabricated case, Bolden should offer my clients the city’s
    apology for wrecking their careers, gutting the Fire Department’s command structure and
    endangering their lives and public safety.
    The city deprived five minorities of promotions because it could not meet a quota of
    promoting four more who failed and who happened to be connected to City Hall? Who is
    Bolden trying to kid? He disingenuously denies both the existence of these minority
    victims and that they were thrown under a bus, paradoxically in consequence of city
    officials’ race-mongering for political gain.
    Karen Torre is the attorney for the New Haven firefighters appealing the city’s rejection
    of the results of 2003 promotion examinations. Readers may write her in care of the
    Register, 40 Sargent Drive, New Haven 06511.

    Posted 30 Jun 2009 at 1:26 pm ¶

33. Free wrote:

    G.D. Thanks for the Slate link.

    Given the political leanings of SCOTUS none of us should be surprised by the ruling.

    And now Rush Limbaugh can label Sonia Sotomayor a “racist at heart.” http://www.newsmax.com/insidecover/limbaugh_sotomayor_ruling/2009/06/29/230271.html

    The Hispanic Firefighters Association was more than willing to let Black firefighters do battle while they just sat on the sidelines to partake of the victory or come out clean in the defeat (as is the case now): let’s talk about that kind of privilege.

    Once, an executive director of an Hispanic organization told me that in the future Blacks and Whites would be irrelevant and all that Hispanics had to do was sit back and wait (imagine what that means for American Indians). He told me this during a meeting about blatant job-related racial discrimination that I had experienced.

    Must we always be alone in the workplace? How must it feel to have the union you support with your dues and your votes, turn their backs? The Slate article focused on the Black-White divide in the workplace, but experience and gut feeling tells me that if they dug deeper, they might have found a Black-Hispanic divide just as deep. Oh the luxury when touched by white privilege and “minority” status.

    Posted 30 Jun 2009 at 1:35 pm ¶

34. Casey wrote:

    “I think it’s so interesting that one of the firefighters keeps crying about how much money he had to spend to get a decent grade and yet can’t see that the test might be flawed.”

    That’s the guy who has dyslexia. He spent extra money on a tutor to help him. It kind of makes me wonder about the non-dyslexic people who scored at the bottom and what their problems were.

    What people don’t know about this test and others is many of these people are doing very well on the test, and the difference between some of the poor performers and the top performers can be very slim.

    Remember these are CHIEF firefighter exams, not some bum off the street. All of these guys have to prove themselves first.

    Posted 30 Jun 2009 at 9:28 pm ¶

35. NancyP wrote:

    What on earth makes anyone believe that firefighting skill and leadership skill can be judged solely on a written test?

    I’d understand if a passing grade for the test as a whole (and for subsections of the test) were required to be considered for promotion, and that a certain percentage of promotion evaluation points be based on test score ranking – I am sure that there are plenty of facts that must be on hand in order to make decisions on the spot. Make it 20% or 40% of the total evaluation. (I don’t know – I am not a firefighter). But it’s not enough to be able to recite the most commonly used arson accelerants, or whatever – one has to be able to demonstrate the ability to make quick decisions under high pressure and get people to follow them (or listen to those people tell you that your facts are incomplete or wrong, and you need to rethink). There’s no way that a written test can measure those strategic and leadership skills. Nor will a written test measure physical courage, moral integrity, sense of public duty, and loyalty to your firefighting team.

    Posted 01 Jul 2009 at 1:17 am ¶

36. km wrote:

    NancyP the written test made up 60% to my knowledge.

    Posted 01 Jul 2009 at 8:35 am ¶

37. Alegna wrote:

    NancyP and KM

    I agree w/you and that is part of why the city decided to throw out the results. They discovered that there existed other tests used in many other cities that did measure those things and that did not lead to the same elevated disparate impact.

    The written test was worth 60% and the oral exam was worth 40%. From my understanding, if the weights were reversed or different the results also would be different. Some of the fire fighters who were part of the suit would not be in contention if the weights were different because they did not do as well on the oral tests. Inside of the decision there is reference to the fact that the oral tests consisted of more on the spot problem solving and judgement call questions.

    Posted 01 Jul 2009 at 6:19 pm ¶

38. Marcy Webb wrote:

    The basic problem here is that the test wasn’t proven to be biased. So, it should not have been thrown out.

    Which is the problem of using tests to determine promotions, or admission to undergrad. and grad. programs. A test should be one of several factors to determine eligibility. My Dear Brother, who is an HRD guy, said that a test to determine who will be promoted determines only one thing: Who the good test takers are. It doesn’t determine, for instance, who is best able to lead during a crisis.

    Seems to me there are a number of issues which need to be re-examined.

    Posted 02 Jul 2009 at 2:19 pm ¶