The Ricci Case

by hilzoy

One of the criticisms of Sonia Sotomayor is that she was part of a panel that affirmed a district court ruling in Ricci v. DeStefano. Here are the basics of the case:

"In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination."

I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn't get his promotion, rather than what the law requires. This puzzled me. Many of the same people who are outraged by the decision also criticize Judge Sotomayor on the grounds that she will substitute her personal preferences for the requirements of the law as written. One might therefore expect them to consider what the law required in this case, rather than simply asking whether the outcome she affirmed was the one they preferred. Oddly enough, however, they didn't.

So I decided to read the case for myself. As best I can tell, the argument in the district court ruling, which the Second Circuit accepts, is as follows:

Ricci and his fellow plaintiffs allege that New Haven's decision to throw out the test was an act of intentional discrimination that violates Title VII of the Civil Rights Act. To prove this allegation, the plaintiffs must first show that there is a prima facie case that they were discriminated against. Next, the defendants can argue that despite this prima facie case, they had a legitimate reason for doing what they did. If they cannot do so, the plaintiffs win; if they can, we move on to step three: the plaintiffs can argue that this supposed reason is a mere pretext disguising discriminatory intent. If they succeed, they win; if not, they don't.

The District Court found that the plaintiffs had established their prima facie case. However, they also found that New Haven had a legitimate reason for acting as it did: wanting to comply with the very same Title VII under which they are being sued. And they found that this reason was not, as the plaintiffs alleged, a mere pretext. Thus, they found for New Haven.

A lot turns on their finding that New Haven had a legitimate reason for throwing out the test. Here, the central points seem to be as follows: first, New Haven's concern about violating Title VII was not just an idle worry. Title VII requires employers not just to inspect their hearts and not find any discriminatory intent, but to consider the racial impact of things like tests. And the EEOC, in interpreting this requirement, has given clear guidance about what impact counts as suspect: 

"A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact."

The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law. 

There are various things an employer can do to show that a test that has a disparate impact on some racial group is nonetheless OK. New Haven did not do any of these things, though it does seem to have spent a fair amount of time trying to figure out what accounted for the disparate impact, without success. But the steps New Haven did not take are not required: to get on the right side of the law, you can either take those steps or avoid the disparate impact by scrapping the measure that produces it -- unless, of course, scrapping that measure is itself a violation of Title VII. 

The plaintiffs argued that scrapping the tests was a violation of Title VII. The Court disagreed. Here again, though, they didn't pull this conclusion out of thin air. This question is governed by precedents, which the District Court discusses on pp. 31-40. I read one of them (Bushey v. New York State Civil Service Commission), and it is very much on point; I'm not a lawyer, but I think that the court would have had to overturn it in order to decide this case differently. Their basic point, as summarized by the Second Circuit, is this:

"These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability."

Scrapping the test was race-conscious: the point was to avoid running afoul of Title VII by having a test that so few blacks and Hispanics passed. But it was facially neutral: New Haven did not require that whites pass the test but waive those requirements for blacks, or anything like that; they cancelled the whole test, for everyone. You might wonder whether this really counts as neutral, but the precedents seem pretty clear to me: in Bushey, the action the court said was OK was race-norming their exams (i.e., setting up different curves for different races, so that each race had about the same percentage of people passing.) It's hard to see how one could say that that's not discrimination, but scrapping an exam in order to come up with a new one is.

A District Court cannot overturn a previous appellate court decision, but an appellate court can. The Second Circuit could have overturned its own precedents had it seen fit. They did not, for reasons that they explain here. 

The basic point of all this is: both the District Court and the Second Circuit seem to me to have been applying the law in accordance with clear precedents. This is what judges are supposed to do. And anyone who thinks that this decision (made by this court) is problematic should not go on to criticize Judge Sotomayor for judicial activism, since no one who genuinely thought there was a problem with substituting one's own views about what the law ought to be for what it actually says would object to this decision.

Comments

[bobbyp]

hilzoy,

Surely you are aware that wingnuts consider judges who uphold a law wingnuts believe unconstitutional are nothing but crazed liberal zealots and screaming judicial activists. So when true right wing radicals like Scalia undermine the law with right wing judicial activism, they are actually returning our beloved nation to its true essential roots as divined (by the elect) through the leap of faith called 'original intent', and anything promoting this agenda is viewed positively. And thus the ends do actually justify the means, as any twit knows.

This cannot be broadcast overly much insofar as original intent may depart in some respects from the application of brute judicial force, but this is neatly elided by the necessity (cf Bush v. Gore) of the will to triumph.

[Warren Terra]

I liked Ezra Klein's formulation:

Ricci's tale is troubling. It's hard not to feel for him.

Ricci's experience, however, is not related to the legal questions presented by the case. As Dylan Matthews explains at Campus Progress, Sotomayor appears simply to have addressed the question before the court: That question was whether the county had reason to believe that the test results left it vulnerable to a lawsuit. Indeed, as Dahlia Lithwick and Doug Kendall argue over at Slate, Sotomayor is being attacked for something relatively odd: Rather than empathizing with Ricci, she ruled on the legal issue at hand. And that meant ruling against Ricci.

Conservatives, thus, are in the awkward position of choosing one of two lines of attack. You can argue that Sotomayor is too empathetic to make a good justice, or you can argue that her ruling in Ricci was cold and unfair. But you can't argue both.

[MadRocketScientist]

Question: Was the New Haven exam consistently getting such skewed results, or was that a one-off event, an outlier?

[gwangung]

I’m surprised but delighted by Olsen taking this on with Boies and am now forced to reevaluate my very low opinion of him. I wish more Republicans would do that. But I won’t be holding my breath for that.

Or is there a new test every year? A relevant question...

[d'd'd'dave]

Good point Hilzoy

[wj]

Occasionally, someone makes a case against a candidate for appointment on account of what they have actually done or not done. But in a really depressing number of cases, where the cases against start is with the assumption that the candidate is unacceptable.

Any action or inaction which is presented is therefore spun to achieve that conclusion. Minor details, like what actually happened, let alone why, are simply ignored as irrelevant. Which, of course, they are -- because the purpose is not to evaluate the candidates suitability for office, but rather to achieve a pre-ordained conclusion. As in the matter of Ricci.

[Jon]

One point that does disturb me about the Ricci case is the way in which the original panel (which included Sotomayor) appeared to try to bury the decision by issuing a summary affirmance based on the reasoning of the district court's opinion. Such affirmances are by no means uncommon in general, but for this specific case with these issues, it was very, very odd. One can ascribe nefarious motives to the panel, but I think they just wanted to dodge a really tough issue and a really tough case. Understandable but not really the right thing to do. This is what pissed off Judge Cabranes (a moderate-conservative Clinton appointee), and he went out of his way not to express his views of the merits, only to strongly criticize the panel for their handling of the decision.

Of course, bottom line is that Hilzoy is right on the merits -- the case was almost certainly correctly decided on the basis of Second Circuit law. The Supremes are now considering it. My above point is a little inside-baseball. I think Publius would agree with me here though.

[mythago]

And that is why I left the Federalist Society after law school. It became more and more obvious that the people who insisted on 'judicial restraint' did so at a time when 'restraint' led to the results they wanted. When 'restraint' started to lead to decisions that were legally correct but anathema to conservatives, all of a sudden these same people started bending themselves into pretzels to explain why those decisions were nonetheless "activist" and wrong.

[Pooh]

I mean is anyone actually surprised by the apparent hypocrisy at work in the Ricci-based objections?

[Brett Bellmore]

Apparently New Haven had a legal leg to stand on, though perhaps not two. (It was their choice not to lift a finger to defend the test, after all.) But you've really damned Title VII in the process of establishing that: It really IS designed to encourage racial quota systems, isn't it?

[von]

There are so many factual issues screaming out of this case that it was highly improvident for the District Court to grant summary judgment. This case should have gone to a jury. (This doesn't mean that the firefighters should win, only that the Court shouldn't have entered judgment without a trial.) I expect the Supreme Court to vacate and remand with exactly those instructions.

The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law.

Not correct. They are presumptively in violation of the EEOC's view of the law -- not the same thing.

[imnotgivingmynametoamachine.]

"It really IS designed to encourage racial quota systems, isn't it?"

I wonder about that. I assume that the "money quote" for this idea would have to be the guideline stating that

"A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact"

Thinking about this in statistical terms, it strikes me that a difference of 20% in observed success rates may or may not be something to get worked up about. It probably depends on how many observations you're working with, and what the base rates of success are. If 100 of 500 people in group A passes the test, while only 1 of 10 people in group B did, you'd run afoul of the guidelines (100% difference rather than 80%) without having any strong statistical evidence that the instrument is differentially difficult for the two groups.

But it also strikes me that, even if the regulators rewrote the rules to do the statistics better, the question of whether it's "designed to encourage racial quotas" depends on whether you think it's more likely that (a) there is an underlying group difference in competence at task X or (b) there is a weakness in the instrument used to *measure* competence at task X. If you think the first is more likely, then yeah, I can see how it would look like an explicit quota system. If you think the second is more likely, it looks like more a (somewhat half-arsed) method for detecting badly designed test instruments. FWIW I would think that the second kind of error is more frequent in real life, but YMMV I guess.

Either way, it strikes me that the purpose of Title VII (whatever that is -- sorry, foreigner!) entirely besides the point, isn't it? Sotomayor correctly applied the law even though it must have been such a miserably hard case in which to do so, and that's what matters from the point of view of hilzoy's post. I would have thought. Or am I missing the point of the OP?

[Elvis Elvisberg]

Brett, surely you don't actually believe that "not defending a test that failed every single black person" = "quota system in hiring." I sure hope your gender and race don't factor into your opinions on that kind of thing. James Inhofe would never vote to confirm you for the SC if they do.

As to the issue hilzoy was addressing, in this case, Sotomayor sided with the majority, who found that the District Court correctly applied existing law. She didn't write an opinion. Most of the other judges on the Second Circuit agreed with her. Disagree if you will, but there's simply no way to pretend that this was anything close to outside the mainstream.

Also note that the plaintiffs in this case were "seventeen whites and one Hispanic." So Sotomayor, in the fantasy world that is right wing thought, fails to show empathy for Hispanics in Ricci because she empathizes with blacks. Or something. God forbid they mention, or examine, what the law actually said in the case.

Her vote with the majority in a Title VII case, and her perfectly innocuous comment in a speech ten years ago, are all that conservatives are barking their heads off about. There's absolutely nothing to either pout. They're upset because they believe in nothing but identity politics, and a non-white president appointed a non-white SC nominee. There is no other reason.

[imnotgivingmynametoamachine.]

sigh: 100/500 vs 1/10 implies that low group is *50%* of high group, which breaks the guidelines (ignore the "100% vs 80%" rubbish - clearly I was on drugs).

[OCSteve]

Hilzoy: “I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn't get his promotion, rather than what the law requires.”

I’ve seen some of that, and I think your analysis applies in a lot of cases (the hypocracy charge, but I’ve also seen this:
http://bench.nationalreview.com/post/?q=MDM0YWM4ZDI1NGIxNTc2MzhiMmRmZDcyNDFiZWI0YmE=

In his dissent from denial of rehearing en banc in Ricci, Judge Cabranes (joined by five other judges) states that the case “raises important questions of first impression in our Circuit—and indeed, in the nation—regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices.” He calls the district court’s opinion (which Sotomayor and her panel colleagues adopted wholesale) “path-breaking” and the questions on appeal “indisputably complex and far from well-settled.” He declares that the “core issue presented by this case—the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants—is not addressed by any precedent of the Supreme Court or our Circuit.”

Further, in its brief in the pending Supreme Court case, President Obama’s Department of Justice argues that the unsigned per curiam opinion that Sotomayor joined—and, given her aggressive lead role at oral argument, probably authored—did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.” On that ground, the Department of Justice argues that the Supreme Court “should vacate the judgment below and remand for further consideration.”

It’s true that the unpublished district-court opinion that Sotomayor and her panel colleagues adopted relies heavily on Hayden and Bushey and rejects plaintiffs’ various grounds for distinguishing those cases. It’s also true that Sotomayor and several of her colleagues, in an opinion concurring in the denial of rehearing en banc, maintain (contrary to Judge Cabranes and the five judges who joined his opinion) that Hayden and Bushey were “controlling authority.” But apart from the fact that neither Hayden and Bushey involved a government entity’s discarding the results of promotional exams, the position of Sotomayor and her colleagues depends on their assertion that “there was no evidence of a discriminatory purpose” in the City of New Haven’s discarding the results—the very assertion that the Obama Justice Department disputes.

[cleek]

I mean is anyone actually surprised by the apparent hypocrisy at work in the Ricci-based objections?

not necessarily surprised, but enlightened.

watching the GOP machine these last five months has been a revelation. i suspected it before, but it's now perfectly clear to me: politics is partisanship; all political speech is rhetorical, and 90% of it is literally nonsense.

the GOP is stroking its base right now. there's no election, so they can pretend to be everything the base wants them to be (the Dems might take a lesson); they are free to say and do outrageous things so long as it keeps the base happy enough to keep the dollars flowing. and so it's a hedonistic party of rhetorical excess in GOPLand. they're drunk on homebrewed outrage and high on homegrown facts. now's not the time for sober analysis.

[jonst]

People invoke the sanctity of precedent when it works for their argument. When it does not...they argue against precedent. This has been going on forever. Or at least 300 years. People that say 'judges always should follow precedent' are therefore, in my opinion, either uninformed. Or disingenuous. Or both.

A strictly insider question for the lawyers out there.....Ricci was an "unpublished opinion" I believe. I wonder how many times an "unpublished opinion" has been granted cert?

[Brett Bellmore]

"Brett, surely you don't actually believe that "not defending a test that failed every single black person" = "quota system in hiring.""

What I believe is that rejecting the results of a test solely because they didn't produce the numerical results you want, without reason to believe there's something wrong with the test, IS a quota system. What I believe is that affirmative action based hiring corrupts, because at every stage you are forced to avoid merit in order to avoid making the original departure from merit evident.

It's a quote a system if you're determined to achieve the numbers, come hell or high water, regardless of how you have to fudge things to do it.

Even assuming that the black candidates were statistically indistinguishable from the rest of the candidate pool, the odds of violating that presumptive rule entirely at random are actually fairly high, given lots and lots of small samples. And 118 candidates was a small sample.

And thanks to affirmative action in hiring, there's every chance they weren't statistically indistinguishable from the rest of the candidate pool, and all the merit based promotional test was guilty of, was revealing that New Haven had a heavy racial thumb on the hiring scale in the first place.

The problem with Title VII, as far as I can see, is that it sets up a system under which running a quote system is the safe way to go, because if a merit system that's entirely unbiased doesn't happen to generate the right statistics, you're screwed. A quota system is the only way to be sure you're safe.

But, I will say that, given the atrocious state of the law, Sotomayor's ruling was defensible, though not really mandated.

[Brett Bellmore]

I mean, you seem to be assuming that, if the test didn't pass a single black, there's something wrong with the test. Maybe you ought to ask why none of the black officers could pass it? Maybe New Haven was hiring blacks without respect to merit in the first place, just to make quota? And the test just revealed THAT racial discrimination...

[MandyW]

As I recall, New Haven "chose not to lift a finger" to defend the test because there wasn't any objective evidence that this particular paper-and-pencil test was a good predictor of success in on-the-job performance.

It's sensible to defend a test that actually measures skills and experience relevant to the job in question, even if there's substantial difference in scores by racial group.

But if a test seems mostly to measure the ability to take tests, then it's sensible to go back to the drawing board and try to devise a new test that better measures qualifications to do the job. If the improved test also happens to produce less disparity in scores by racial group, that's an added bonus.

[Hartmut]

I'd say something stinks somewhere. But without a close look at (at least) the test in question, I can't say for sure where that bad smell is coming from exactly.
It's damn easy to (even without intent) rig a written test in a way that puts certain groups at a disadvantage* but it's also possible that in a group of limited size statistics look biased by mere chance.

*IQ tests or multiple choice in general more than tests requiring extended writing.

[Joe]

This is a well reasoned defense. The noise is coming from the controversial nature of the subject matter. Let's say the majority was wrong. It would be one case and she had company. If this is the worst critics can bring, they have little to offer.

[Hartmut]

Don't you know the hidden amandement that states that SCOTUS members must be infallible? ;-)

[bobbyp]

Brett,

What is wrong with quota systems? We have them on a de facto basis for many well paying professions (cf. Wall Street investment bankers).

Low paying professions...? Well, not so much (cf landscapers).

How does the conservative world view steeped in the alleged worship of freedom and "merit" explain this undeniable outcome?

[Jonathan H. Adler]

Hilzoy --

Your analysis is missing something quite significant: Consideration of whether it was appropriate for the district court to award summary judgment. Summary judgment if there is no disputed question of material fact. In this case, there is disputed evidence whether New Haven discarded the test solely out of a fear of Title VII liability or at least in part because it did not like the racial breakdown of the results. If the latter, their action was not clearly permissible. This is why the Obama Administration has filed a brief in the case asking the Supreme Court to vacate and remand the case. According to the Solicitor General's brief, neither the district court nor the Second Circuit panel on which Judge Sotomayor participated gave adequate consideration to these contested questions of fact -- and the mere existence of such questions should have precluded summary judgment.

Furthermore, as another commenter has already noted, moderate judges, such as Jose Cabranes, disagree quite strongly that the case outcome was dictated by Circuit precedent, and disagreed strongly enough to call for en banc rehearing and criticize the panel's handling of the case.

JHA

[kid bitzer]

we're talking about fire-fighters here, right?

people who run into burning buildings with hoses?

does it really seem like *any* paper & pencil test is going to do a good job of sorting the competent fire-fighters from the ones who don't have the right stuff?

i mean--my point here is not directly on the law in the way hilzoy's post is. but it does go some way towards addressing whether new haven was acting in good faith.

and my point is just this:

a test that says that black people cannot be good fire-fighters, is clearly a hopelessly flawed test.

look, pretend you're the most retrograde racist on the planet. imagine you think that all black people are illiterate and ignorant.

do even you, in your racially benighted state, think that black guys are not just as capable of chopping down doors, running up ladders, and carrying hose as white guys are?

so if you had a test which somehow told you that black people just couldn't cut it in the hose-toting business, wouldn't you think that this was a really lousy test to use for hiring fire-fighters?

like, maybe so utterly lousy that you should throw it out?

if i were the city of new haven, and my options were to throw out the test, or to go through, question by question, and show why filling in the c-bubble instead of the b-bubble was really proof of whether you could rescue kittens or not, i would do what they did and throw it out.

when a test gives results this ridiculous and irrelevant to the job in question, the burden of proof, to my mind, does not lie on actors who want to throw it out, but on those who want to keep it.

[Elvis Elvisberg]

Jonathan-- Let's assume that you're right, and that the "moderate" minority on the Second Circuit had the better of the argument.

Who cares?

The issue is Sotomayor's fitness for the SC. She was one vote in a majority here. There's simply nothing troubling, much less disqualifying, about this.

This issue is being raised in this context solely because conservatives are obsessed with race. They see that Sotomayor isn't white, so they classify her as "other," and hunt down cases that confirm this impulse. That she ruled against a Hispanic plaintiff doesn't seem to factor into their calculations.

[von]

Elvis, Jonathan's point regarding summary judgment (a point I made as well in my 7:08 am post) gets at a larger issue: Juries, not judges, decide facts. When a judge usurps the role of a jury and decides issues of contested fact his or herself, it's a problem.

It's not so much about who should win, here, but who should decide. I read the district court opinion as a practicing lawyer who has filed many a summary judgment motion. I simply cannot believe that the judge granted summary judgment on these facts, and the 2d circuit majority erred in upholding the judge's improvident grant. I would be surprised if the Supreme Court didn't vacate and remand.

[Scott P.]

Not correct. They are presumptively in violation of the EEOC's view of the law -- not the same thing.

Under Chevron deference as applied by this court, they are tantamount to the same thing. Although I expect Scalia et al. will fall over themselves to come up with a reason why the rule they use in 95% of their cases doesn't apply here.

[ThatLeftTurnInABQ]

"watching the GOP machine these last five months has been a revelation. i suspected it before, but it's now perfectly clear to me: politics is partisanship; all political speech is rhetorical, and 90% of it is literally nonsense."

Ditto that. I came to that conclusion years ago.

Add in the observation that much of our individual political outlook is influenced if not determined by cultural and genetic (i.e. personality) factors which are at least partially beyond the control of the individual, and to me the logical conclusion is there is not much point to getting in anyone's face and yelling at them when it comes to politics. Might as well complain about their hair color and sexual orientation for all the good it will do ya.

It is worth keeping in mind that this nonsense in politics is a two way street and all tribes are vulnerable. By the time the street sweeper finishes driving down the right side of the block sweeping up all the leaves and dust and trash, it will probably be time for it to make a U-turn and make a pass on the left side. What goes around comes around.

[Joe]

Fine enough on the summary judgment issue. It's perhaps a valid criticism -- not reading the case closely. Again, is this a trend of cases she joined? As E. notes, it is but one case.

Also, as recent opinions suggest, the Supreme Court play fast and loose with clear disputes over the facts when it fits their ends, often conservative. So, don't be so keen on thinking they will remand the case on that issue. Sure, could be right.

In fact, she discussed the point in a fashion in the video where she made the point about appellate courts making policy. She noted that they are often less concerned with individual litigants -- though not always -- centering on the overall principles of law.

This bias of sorts can skewer judgments on such things as if summary judgment was warranted. I'd need to see trends to see if this one case truly matters in this respect.

[gwangung]

In fact, she discussed the point in a fashion in the video where she made the point about appellate courts making policy. She noted that they are often less concerned with individual litigants -- though not always -- centering on the overall principles of law.

This bias of sorts can skewer judgments on such things as if summary judgment was warranted. I'd need to see trends to see if this one case truly matters in this respect.

Then again, put two and two together. Yes, she said appelate courts makes policy. Now, read the analysis of her opinions. A lot of them say that they are made on narrow grounds, citing lots and lots of precedent.

Yes, there does seem to be a bias here...but it appears to be a bias that would seem to please conservatives--being HIGHLY aware that you're making policy and ruling narrowly because of that awareness.

[bc]

Jon and Adler state the issue well. The concern here is whether Sotomayor swept the case under the rug by not arguing for en banc. It appears to be very unusual to have a case of this nature not be heard in full. By not issuing a decision en banc, the chances of SCOTUS review were slim until Cabranes came roaring in holding up a red flag screaming "certiorari!" And he, a Clinton appointee.

And remember that the vote was 7-6 on hearing en banc. Yes, the "majority" sided with her, but by a very slim margin.

The reason why a complete review would have been appropriate here was it was a novel question we will likely see more of without a definitive answer. Hilzoy's statement that Sotomayor was applying "clear precedent" ignores an important point. That is true only if you assume that New Haven's motivation was to avoid Title VII liability. The firefighters argued that New Haven was caving in to racial politics.

In the briefing before the Supreme Court, apparently all (apparently because I have not read the briefs; I'm taking this from second hand accounts I have read) parties agree that if New Haven cancelled the test because it did not want to promote the plaintiffs because of their race New Haven's acts were blatantly illegal. A lot of the discussion centers around New Haven's purported motivation of not running afoul of Title VII's provisions. But the firefighters argued to the contrary and said this was nothing more than good old fashioned racial discrimination and argue that there is substantial evidence in the record to show that. So why didn't Sotomayor address those concerns?

And you have to ask yourself if you would feel the same way if the facts were different only with respect to who did well on the test. What if only blacks had passed the test. Would you accept the following statement by Judge Arterton? (the district court judge):

"All applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted."

I think it would be plain to see that if "too many blacks" had been promoted throwing out the test results would have been blatant racial discrimination.

The test was reviewed by a purportedly reputable firm to weed out any racial preference. After the fact no problems in the test were found. Given the small sample size, I would not think that it that statistically unusual for this result to happen for entirely non-racial reasons (statisticians out there?) So why does everyone leap to the conclusion that the test is flawed?

And given the pressure by political groups to throw out the test, why can't Ricci argue to a jury that throwing out the test was not for a purportedly benign "avoid the Title VII lawsuit" reason but due to racial politics?

Ricci's case from an individual standpoint is compelling. He's dyslexic and paid a friend $1,000 to read to him to study for the test. He quit a second job to study. He was 6th of the lieutenant applicants.

"A strictly insider question for the lawyers out there.....Ricci was an "unpublished opinion" I believe. I wonder how many times an "unpublished opinion" has been granted cert? "

I think this was the result of Cabranes dissent. Not too many summary decisions adopting the reasoning of the district court have dissents like his.

[hilzoy]

von: "There are so many factual issues screaming out of this case that it was highly improvident for the District Court to grant summary judgment. This case should have gone to a jury. (This doesn't mean that the firefighters should win, only that the Court shouldn't have entered judgment without a trial.) I expect the Supreme Court to vacate and remand with exactly those instructions."

Here I have to get into the weeds a bit. If you read the case, one problem is that there are two different standards that the court might have used to assess the main factual issue, which was: was New Haven motivated by racial politics, or by a desire to avoid litigation? Which standard to use depends on what, exactly, the plaintiffs were claiming. Given one sort of allegation (call it A), the court needs to answer the question: was New Haven's claim that it was trying to follow the law a mere pretext for an attempt to discriminate? Given another sort of allegation (call it B), the court needs to answer the question: did New Haven have mixed motives for doing what it did, and if so, was that mixture an impermissible one?

Cabranes thinks that the majority should have used mixed motive analysis. The majority claims that that analysis was not available to them, because the plaintiffs had in fact only made allegation A. They argue that to say "but if the plaintiffs had made argument B, which they did not, then we would use this other test, which the government would fail", is inappropriate for judges. I do not know enough law to say whether they are right about the plaintiffs' use of the arguments, etc. I do know, though, that if they are right that the plaintiffs did not make this allegation, then the court ought not to pretend that they did, for the same reasons that make it wrong for a judge to say: well, you're innocent of the charges actually brought against you, but looking over your record I can see this other crime ... -- I mean, I have always understood that judges are supposed to settle the questions brought before them, not invent whole new ones. And that's what these judges seem to have done.

Now: if the question is whether New Haven's actions were a mere pretext, there's ample evidence that it was not, including not just the fact that they do, in fact, seem to have been presumptively in violation of the law, and were so advised by counsel, but also a whole mass of meetings and consultations about what to do to get themselves in compliance with Title VII, etc. I can see a case based on the claim that their motives were mixed. But it's really, really hard to see a case based on the idea that they weren't really concerned about Title VII at all, it being a mere pretext.

Von again: "Not correct. They are presumptively in violation of the EEOC's view of the law -- not the same thing." -- As the cases say, an implementing agency's view of what the law is is entitled to "great deference".

[hilzoy]

Jon: "One point that does disturb me about the Ricci case is the way in which the original panel (which included Sotomayor) appeared to try to bury the decision by issuing a summary affirmance based on the reasoning of the district court's opinion. Such affirmances are by no means uncommon in general, but for this specific case with these issues, it was very, very odd. One can ascribe nefarious motives to the panel, but I think they just wanted to dodge a really tough issue and a really tough case. Understandable but not really the right thing to do. This is what pissed off Judge Cabranes (a moderate-conservative Clinton appointee), and he went out of his way not to express his views of the merits, only to strongly criticize the panel for their handling of the decision."

I didn't address this, since I have no idea whether this sort of thing is common or not. A commenter at the Monthly says:

"I would just like to add one small detail to the story - a procedural thing that I'm more familiar with as a lawyer in the Second Circuit. Some people on the web seem to be criticizing Judge Sotomayor not for how the three-judge panel she was on *resolved* Ricci, but rather, for the fact that they just did it in a short paragraph instead of writing a full opinion. This criticism is very misguided. Not uncommonly, the Second Circuit judges on an appellate panel decide that the District Court judge has done an excellent job, and therefore conclude that nothing is gained by having them essentially rewrite all the reasoning that is already set out in detail by the lower court. So, they do a short paragraph, and in effect just incorporate by reference the reasoning of the trial judge. (It's a feather in the cap of the trial judge when it happens - it means they did an particularly good job.) That is what happened here. It happens all the time. One conservative judge on the court, Jose Cabranes, decided to make a stink about how his colleagues had given the case short shrift. He was well aware that Sotomayor and her panel were not doing anything unusual; he just wanted to prompt his colleagues and/or the Supreme Court to take a closer look at the case. (He succeeded: the Court granted cert.) The allegation that Sotomayor and the other judges on the panel were trying to "bury" or ignore the issues in this case is wholly without connection to reality."

[stonetools]

@von

Given the spotlight the case has been given and the current makeup of the court, I am certain that that the Supremes WILL vacate and remand

However, Sotomayor voted as one of a unanimous panel in the case-and the panel's vote was upheld by the majority of the Circuit. Its not like if she was writing for the majority or if the decision overturned some major precedent. She is pretty much going with the flow of the Second Corcuit-which affirms the view of her as a judicial moderate.

[hilzoy]

OCSteve: About the NRO: it was precisely because I had read that piece, with its citation of Cabranes' claim that the precedents were not on point, that I went out and read the precedent that the district court seemed to rely on most. Again, I am not a lawyer, but it seemed to me to be precisely on point; if anything, it would have justified even more than New Haven actually did.

[Nell]

When I suggested in comments on an early Supreme Court picks thread that it was very unlikely that, given four nominations, Obama would appoint four liberals, some other commenters were clearly incredulous. I was asked on what evidence I based this apparently far-fetched speculation.

Well, the new President hasn't even gone one for one.

I'm not opposed to Judge Sotomayor's confirmation at all, but the idea that someone is automatically a liberal because they're a woman or they're Nuyorican is ridiculous.

Nor am I disappointed or upset that Obama hasn't picked an actual liberal for his first Supreme Court pick. But this pick says to me that it's unlikely he will for his next one, either -- because Sotomayor has been branded "liberal" by the media and wingnuts, the usual brain-dead calculation will apply: next he has to appoint a white male moderate. {Hellooooo, Cass Sunstein.}

[Sebastian]

"To prove this allegation, the plaintiffs must first show that there is a prima facie case that they were discriminated against. Next, the defendants can argue that despite this prima facie case, they had a legitimate reason for doing what they did. If they cannot do so, the plaintiffs win; if they can, we move on to step three: the plaintiffs can argue that this supposed reason is a mere pretext disguising discriminatory intent."

In my previous reading a few months ago, I would have sworn the Fire Department had the test designed initially with the point of narrowly tailoring it to avoid the possibility of EEOC problems at the very beginning (before anyone had taken the test). I can't find it now, but can anyone confirm or deny that for me?

As far as the facts go, I can't imagine a normal case being decided at the summary judgment phase with this many important factual issues left unresolved. Judges are normally pretty reluctant to dismiss plaintiff claims early anyway and they aren't supposed to do it unless the case presented is completely hopeless even if you conceed every material fact to the plaintiffs. But if you do that in this case, you absolutely have things left for the jury to decide.

If you conceed all facts in dispute to the plaintiff (which you must do at the summary judgment phase) you are left with at least one crucial factual dispute that must be resolved by the jury: whether or not the litigation excuse was a mere pretext used to discriminate. That can't be resolved by without factual inquiry. (Note that the case you quote [Bushey] reverses a faulty summary judgement motion and remands it for further factual inquiry. This case does the opposite and removes the possibility of further factual inquiry).

Contra the commentor you quote, this was a case of first impression: the point of whether or not the alleged fear of litigation should cut off factual inquiry about racial motivations alleged in a decision maker via summary judgment had not been resolved previously. It is an important question, because it would make inquiry even to blatantly illegal (under the current understanding) quota systems very difficult.

This case also highlights an interesting form of legal drift. There is nothing in Title VII that you could read into requiring this kind of outcome. It says things like:

It shall be an unlawful employment practice for an employer—

...

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

And even more on point:

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.

There is of course no evidence whatsoever that the test was designed or intended to discriminate. And in fact the whole actions of the Fire Department around this case suggest otherwise.

An unlawful employment practice based on disparate impact is established under this subchapter only if—
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

Noone claims that the Fire Department is unlikely to be able to prove that the test was not job related. They merely claim that proving so might be costly in litigation. Which is of course true, but doesn't normally provide a get-out-of-litigation-free card. And which certainly doesn't let you avoid litigation (at the summary judgment phase or earlier) about whether suddenly canceling the test is racial discrimination against those who passed it.

And we also have:

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

What I find interesting about this case (which doesn't really hit Sotomayor one way or the other) is that the decade-long build up of precedent appears to have caused the application of the law to have drifted into something which is almost at odds with the law itself. What do you do in cases like that?

[Brett Bellmore]

"a test that says that black people cannot be good fire-fighters, is clearly a hopelessly flawed test."

But a test which says that one particular set of black people cannot be good fire-fighters is NOT clearly a hopelessly flawed test. There certainly must be black people who wouldn't be good fire-fighters, right? And nothing guarantees that, in any particular instance, they won't be the ones taking the test.

[stonetools]

@Nell

I too would have liked to see Obama appoint a fiery, Brennan-type liberal to the court-if only to counterbalance the fiery conservatives on the Court. Instead, Obama replaced a slightly right of center moderate with a slightly left of center moderate, so we get the Court moving incrementally leftward.
Hey, she is a woman and a Latina, so let's be thankful for those not so small mercies.

[Brett Bellmore]

"I too would have liked to see Obama appoint a fiery, Brennan-type liberal to the court-if only to counterbalance the fiery conservatives on the Court."

The conservatives on the court, such as they are, are no more "fiery" conservatives, than this nominee is a fiery liberal. They're actually pretty mushy conservatives, for the most part.

[russell]

"They're actually pretty mushy conservatives, for the most part."

Brett, I hate to break it to you, but there are many, many, many people in the world who do not comply with your definition of conservative, but who nonetheless identify themselves as conservative, and are recognized as such by everyone in the world other than you.

[ThatLeftTurnInABQ]

"there are many, many, many people in the world who do not comply with your definition of conservative, but who nonetheless identify themselves as conservative, and are recognized as such by everyone in the world other than you."

Larison recently posted an interesting take on this problem.

The short version would be that libertarian conservatives and other non-mainstream, non-GOP water carrier types are now in the unfortunate position of someone who let the neighbors borrow their car, which was used to rob banks and run down hapless pedestrians, and are now left wondering why the cops look at them funny when they drive through the neighborhood.

[GoodOleBoy]

Usually, a nominee's critics dig up the best instance to support their opposition, but Sotomayor looks OK in this case. Critics lose.

[Brett Bellmore]

Russell, I'm every bit as entitled to notice that the far right end of the political spectrum isn't represented on the Court, as you are to notice that the far left end isn't. The Justices are the mushy middle of American politics, with huge expanses of opinion to be found to BOTH sides of them.

If they have any consistent political bias, it's in favor of expansive federal power, which is to be expected of judges nominated and confirmed by federal officeholders.

[Brett Bellmore]

I wouldn't say ok, but she's the best you'd plausibly expect out of Obama, and he didn't nominate anybody you'd be able to defeat in a 61 Democrat Senate. As I said a while back, elections have consequences, Obama isn't going to nominate anybody Republicans would like.

[Point]

cleek

"The GOP is stroking its base right now. there's no election, so they can pretend to be everything the base wants them to be (the Dems might take a lesson)"

I would say, wait until 2010 to see what the lesson is -- right now, they don't seem to be doing themselves any favors.

[Point]

nell (at 12:05)

I'm pretty sure this was my point at the time, but here it is again:

Is Sonia Sotomayor more moderate, more conservative, or less liberal than David Souter?

If not, we're really just splitting hairs here.

[Point]

Wondering where my post, responding to Nell at 12:05, went.

Basically, as I said last time he brought it up, the real question is whether Sotomayor is more moderate, more conservative, or less liberal than Souter.

No matter -- turns out stonetools essentially beat me to it (12:39).

The rest really is hair splitting though.

[Gary Farber]

"Russell, I'm every bit as entitled to notice that the far right end of the political spectrum isn't represented on the Court, as you are to notice that the far left end isn't."

Well, the far right are neo-Nazis, just as the far left are communists. I have to say that I'm relieved that no one on the truly far ends of the spectrum are on the Court.

Just to benchmark your spectrum, though, Brett: so Thomas and Scalia are moderate conservatives, then? And Roberts and Alito the same?

Which judges or individuals would you, if you were president, nominate to represent the proper and sane "fiery" conservative view?

"If they have any consistent political bias, it's in favor of expansive federal power"

That's the view of Thomas, Alito, and Roberts? Interesting.

[Tony P.]

"The Justices are the mushy middle of American politics, with huge expanses of opinion to be found to BOTH sides of them."

You might be correct, Brett -- though I shudder to think what "huge expanses of opinion" are to be found to the right of Scalia.

But are you talking about personal political opinions, or judicial interpretations? A judge might personally believe that The Law should afford women the absolute, unrestricted, individual right to own guns but should absolutely forbid them to have abortions. For all I know, Scalia personally believes exactly that. As a judge, however, he is constrained to be more ... moderate. Not because he was "nominated and confirmed by federal officeholders" but because The Law is not quite as "conservative" as he would like it to be.

--TP

[Sebastian]

I think you could fairly say that Scalia and Thomas are of the right while Roberts is of the middle right. O'Connor was middle right, Kennedy is middle/hard to classify. Souter turned out to be mostly left. Ginsberg is definitely left. Stevens is hard to classify but in a mostly leftish way. Breyer is left. Alito is right.

[mds]

"That's the view of Thomas, Alito, and Roberts? Interesting."

When it comes to the unilateral powers of (Republican) presidents, or to police powers, I'd say that they are in favor of expansive readings. However, I would also note that this places them firmly in the modern American conservative tradition in all its authoritarian glory, "no true Scotsman" protestations to the contrary.

And Mr. Farber, you are apparently not aware that neo-Nazis are actually on the left. No, really. I know it sounds crazy, but in a world where Judge Sotomayor is a "leftist," anything is possible.

I do find it interesting that summary judgement by a District Court has so coincidentally become a bugaboo, though. Especially when it has already been pointed out that the argument hinges on the "controversial" question of whether New Haven was worried about a Title VII lawsuit at all. After all, without a jury trial, how do we know that city attorneys don't just have a thing for sticking it to Whitey, especially at the expense of those Italian-Americans whom Mayor DeStefano so plainly despises? If this didn't involve a pre-existing hot button issue for certain parties on and off the Court, don't expect me to believe that summary judgement would have been a sticking point.

[Brett Bellmore]

"Which judges or individuals would you, if you were president, nominate to represent the proper and sane "fiery" conservative view?"

I wouldn't, I'm not a conservative. I do, however, think highly of Judge Alex Kozinski.

[blogbudsman]

Debating SCOTUS appointments is a pundit thing. I doubt if most Americans are tuned in, or even want to be tuned in that closely - not to say they don't care, it's just an elusive concept for most. Once a president is elected, then they should have the preponderance of responsibility to nominate a suitable Supreme Court Judge, regardless of politics or legacy concerns. And most judges that reach the short list would probably be qualified. In fact, a person that reaches that point in that career, once approved, could certainly be expected to follow their own heart regardless of party politics or world view. Most of the politicians and talking heads that are leading open public opposition to SCOTUS selections end up scarring their own reputations – if that group could sink any lower. In this arena, speaking to the base is baseless. Nominate, debate, vote. Move on.

Sorry about the posts, I hate to drop by without saying hello. It's been a great balancer for me to visit in these trying times to see what discussions you guys are avoiding. Pretty revealing. Hilzoy still far outclasses you all - the dreaded pirate hilzoy that is.

God Bless.

[Eric Martin]

"Hilzoy still far outclasses you all"

Well, you got one thing right at least. At least, with respect to front page posters (with all due respect Von, Publius and Seb)

[russell]

"Russell, I'm every bit as entitled to notice that the far right end of the political spectrum isn't represented on the Court, as you are to notice that the far left end isn't."

I'm not trying to deprive you of any entitlement, I'm just trying to get my head around exactly what a SCOTUS judge would need to embrace to earn the title "conservative" in your eyes.

[Shipwreckedcrew]

The problem with the district court decision is that it granted summary judgment -- judgment without a trial -- in favor of the City when the case authority requires a trial under Title VII. You pointed to it in the 3 Step analysis -- the City of New Haven established to the satisifaction of the district judge it had a legitimate reason for what it did. That doesn't mean the City wins, it simply means the City doesn't lose at that point. The plaintiffs were then entitled to a trial on the question of whether the reason was merely a pretext.

Granting summary judgment without having a trial on this disputed fact -- whether New Haven's justification was real or pretextual -- is where the district court erred. And the panel decision in the 2nd Cir. made a mockery of the appeal process by not even deeming it necessary to address the claims of error raised by the plaintiffs in their appeal. In essence, the Court of Appeal -- after 150 pages of briefing, 1800 pages of records and transcripts from the district court proceedings, and one hour of oral argument -- issued two paragraph decision saying "We agree with the district court" and not much more.

The Supreme Court is going to reverse -- maybe unanimously -- not on the merits of the plaintiffs' claims, but simply on the procedureal question of whether summary judgment against them was appropriate under the circumstances.

That its a scalding indictment of Sotomayor's COMPETENCE as an appeals court judge.

[SanDiegoDave]

Hilzoy, you are deluding yourself.

So if the whites had not achieved scores within 80% of another racial group, and New Haven did the same thing, can you honestly sit here and say that Sotomayor would have come to the same legal conclusion when that racial group sued? Yeah, keep telling yourself that.

You see, that's the easiest way to tell if something is racist. Just reverse the situation and honestly tell yourself if the outcome and reaction would have been the same.

Grasping so tightly to this "precedent" business is a cop-out. You don't believe in such a thing as judicial review? How about equal protection under the law whereby assigning this ridiculous 80% rule is so patently racist on its face that one need only look to the constitution itself to find "precedent" and "legal grounds" to see the racial discrimination what New Haven did (even if Title VII demands it).

THAT is the judge's primary duty: interpret the law based on the constitution, not on what some prior judge may have incorrectly decided. Ever heard of Dred Scott?!? Are you now arguing that no subsequent court should have overturned it because it was "precedent"?

I don't think Sotomayor is a "racist", but I think she rules based upon the (false) premise that all Caucasians have an unfair institutional and cultural advantage against all non-whites, and that forced race-based outcomes are fine as a matter of law. That alone, I believe, should disqualify her from service on the Supreme Court.

[Brett Bellmore]

"I'm just trying to get my head around exactly what a SCOTUS judge would need to embrace to earn the title "conservative" in your eyes."

Maybe you should ask what the judge would have to embrace to earn the title, "fiery" conservative, since that's what I denied were on the Court.

[Jenna]

If you start with the assumption that the law, liberals, and all instruments and proponents of anti-discrimination measures are secretly fine with discrimination against straight white males, then I don't think it's worth much fanfare when you conclude that anti-discrimination measures are actually discriminatory. That's closer to begging the question than proving the point.

[ScentOfViolets]

"a test that says that black people cannot be good fire-fighters, is clearly a hopelessly flawed test."

But a test which says that one particular set of black people cannot be good fire-fighters is NOT clearly a hopelessly flawed test. There certainly must be black people who wouldn't be good fire-fighters, right? And nothing guarantees that, in any particular instance, they won't be the ones taking the test.

Posted by: Brett Bellmore

Here's something you won't see everyday: I actually agree with von and Brett. I'd really like to see this test, as my suspicion is that it is very similar to one that caused some controversy in my own neck of the woods:

City drops firefighters' entry test By Jake Wagman ST. LOUIS POST-DISPATCH 09/06/2007

St. Louis — Hundreds of aspiring firefighters failed an entrance exam this summer because they could not answer basic math and reading questions, according to the city's personnel chief.

More than 70 percent of about 1,350 applicants failed the test, said personnel director Richard R. Frank. The city plans to scrap the results of the exam and retest all of the applicants at a later date.

That decision comes amid simmering tension in the department over another exam, the promotional test for existing firefighters, that was the subject of a prolonged federal lawsuit alleging racial bias.

"The last thing I want to do is use some examination that is going to be so controversial that it lands us in court again," Frank said Wednesday.

He said he had thrown out the entrance exam because he could not rely on a test where more than seven out of 10 applicants failed.

Read on:

"We're learning that many, many job applicants are coming to the job without basic skills," Frank said. "The schools are doing a questionable job of preparing people."

The July test was the first part of an entrance exam that applicants must pass before qualifying to take a physical performance test. Candidates who pass both phases, plus a background and medical screening, are eligible to become fire privates, the lowest rank in the department.

But, Frank said, the vast majority of applicants taking this year's test did not fare well enough on the reading comprehension or arithmetic questions to advance.

"They obviously could not read and respond to the questions appropriately," Frank said.

The city typically does not release test questions, but Frank offered one problem that he said would be similar: Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?

"We're talking about elementary level skill," Frank said.

Assuming that the same passing rate applies, it seems that 7 out of 10 prospective firefighters could not answer that question.

Now, you can say that this is discrimminatory, that knowing how to figure out the answers to these questions isn't really necessary to fight fires all you want. But it seems to me that if I was a white guy who passed a test like this and then was denied a promotion or was not hired on the grounds that it was 'discriminatory', well, I'd be pretty hot too.

So it seems to me that it is entirely possible that Ricci was indeed bad case law. Is there any reference made to the specific questions on the test itself anywhere? If not, then there's no way to tell.

(note: this is why I'm into the science and math stuff. Not law or politics.)

[Anderson]

The plaintiffs were then entitled to a trial on the question of whether the reason was merely a pretext.

Only if they could show a genuine issue of material fact, not mere speculation. If shouting "pretext!" got you to a jury, there would be a lot more Title VII trials.

Can anyone point us non-opinion-readers to the alleged evidence in support of mere pretext?

Thanks!

[Gary Farber]

"You see, that's the easiest way to tell if something is racist. Just reverse the situation and honestly tell yourself if the outcome and reaction would have been the same."

You can't reverse history, and existing circumstances. "White" people" made "black" people slaves. Jim Crow kept "black" people down, not "white" people. Pretending that their circumstances can be reversed is a fantasy of those who seek to deny reality and history so as to benefit themselves, and the more powerful over the less.

Oppressed and oppressor are not, in fact, mirror images of each other. That's a Big Lie.

[Phil]

And Mr. Farber, you are apparently not aware that neo-Nazis are actually on the left.

And today's, "Oh, Brother" award goes to . . .

[Slartibartfast]

It's because it's got socialist in it, Phil. Even middle school social studies class is a little bit leftist.

[Gary Farber]

Social dance is even worse.

Unless it's contra dance.

[SanDiegoDave]

You prove my point Gary. You base your assumptions on skin color, not on the character and skills of the individual. Moreover, you presume ALL whites are oppressors, and ALL non-whites are oppressed. That's actually the racist view.

What white people alive today enslaved black people over 100 years ago? That's right: none.

The situation CAN be reversed and is entirely applicable. Furthermore, you do then admit then that Sotomayor should have (and would have) come to a different legal conclusion if the test results were reversed?

[ScentOfViolets]

You can't reverse history, and existing circumstances. "White" people" made "black" people slaves. Jim Crow kept "black" people down, not "white" people. Pretending that their circumstances can be reversed is a fantasy of those who seek to deny reality and history so as to benefit themselves, and the more powerful over the less.

Oppressed and oppressor are not, in fact, mirror images of each other. That's a Big Lie.

Posted by: Gary Farber

Are you saying that "Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?" is a racist question one way but not the other? Hey, I'm all for affirmative action myself. But what you seem to be saying is that out-and-out quotas are okay. That I would have to strenuously object to.

[gwangung]

Historical amnesia, indeed.

[Wim Prange]

bc at 11:11 AM

Hilzoy's statement that Sotomayor was applying "clear precedent" ignores an important point. That is true only if you assume that New Haven's motivation was to avoid Title VII liability. The firefighters argued that New Haven was caving in to racial politics.

I'm trying to get my head around this but aren't those two the exact same thing? It's clear New Haven motivation wanted to comply with Title VII. That's the reason they threw out the test. You just want to make it sound something "dirty". But that "dirty" thing is the Law in New Haven.

The case is essentially a "damned if you do, damned if you don't" situation. Had New Haven decided to uphold the test, they would probably get sued by the minority fire fighters. It's always tricky to play the "what if" games but I think in such a case it would have been pretty obvious that the courts would have ordered the city of New Haven to throw out the tests because they violated Title VII of the Civil Rights Act.

[Wim Prange]

ScentOfViolets

The city typically does not release test questions, but Frank offered one problem that he said would be similar: Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?

"We're talking about elementary level skill," Frank said.

From the horrible way the question is phrased, I'd say, fire the people who wrote and approved the question ("length of hose is 30 feet long"; "How many lengths of hose are needed". Replace "length of hose" with hose and the question is much easier to read. What do you think the answer is?

A lot of non-firefighters probably would have answered 3 "lengths of hose". But would that be correct? You don't want to get your a$$ on fire, you always want to keep a distance and a distance of at least 30 feet seems about right to me. So two "lengths of hose" might be enough? The water pressure will do the rest?

Or maybe it is standard procedure to ALWAYS take ONE more "lengths of hose" as anticipated? To prevent having to adjust your "length of hose" at a critical moment and waste valuable time?

[DukeLaw]

I love the way certain Federalists argue the law here. Especially the one person who proposed the scenario if standarized tests favors black. Nothing like arguing in a vacuum because such a test does not exist. You can argue a nonsensical scenario till you're blue in the face, but the fact is there is no case law where a standardized test has been show to be statisically biased on behalf of blacks. (And let's take into account how Asians are treated. It's amazing how schools counter Asian enrollment by focusing on "external" extracurriculars to raise their white enrollment (but the conservatives scream bloody murder when that same logic is applied to other minority applicants)).

Finally (with regard to the Wise Latina comment), let me tell you that my experiences being called a chink or a gook during my childhood does make me more qualified to discuss racism than those white males who were the ones doing the name calling. Feel free to disagree but you're being intellectually dishonest.

[Gary Farber]

"You base your assumptions on skin color, not on the character and skills of the individual."

No, I base my understanding of racism on how racism works. When people act on a racist basis, conscious, or in most cases unconscious, they're precisely not acting on the basis of the character and skills of individuals.

"Moreover, you presume ALL whites are oppressors, and ALL non-whites are oppressed."

No, I presume that people perceived as "white" get to take advantage of that privilege in innumerable situations, and people perceived as "black" get disadvantaged in innumerable situations. Not all situations; just countless ones.

Every day countless numbers of dark-skinned people are treated differently than people perceived as "white" when they apply for jobs, seek rental housing, walk into high-class stores, and in innumerable other situations.

You may not notice this, and if so, how lucky you are.

"What white people alive today enslaved black people over 100 years ago? That's right: none."

And in my lifetime Goodman, Schwerner, Chaney, Medgar Evers, and plenty of other people weren't killed because of racism, and racism today doesn't exist. Hooray! (Sexism has also been eradicated in your world, I suspect.)

Try taking this test and checking your results.

"Are you saying that 'Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?' is a racist question one way but not the other?"

I have absolutely no idea how you got that out of anything I wrote.

"But what you seem to be saying is that out-and-out quotas are okay."

If you can quote me the sentence in which I addressed the topic of quotas, or anything related to the topic, I'd be surprised and interested.

[stonetools]

@SOV

I think that the fire hose question could be justified as being reasonably related to job requirements. The issue would be whether the remaining questions were like that, and not questions of the "Who is the president of Azerbaijan?" type-questions not related to the job of fire fighting, or leading a team of fire fighters.

[ScentOfViolets]

The city typically does not release test questions, but Frank offered one problem that he said would be similar: Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?

"We're talking about elementary level skill," Frank said.

From the horrible way the question is phrased, I'd say, fire the people who wrote and approved the question ("length of hose is 30 feet long"; "How many lengths of hose are needed". Replace "length of hose" with hose and the question is much easier to read. What do you think the answer is?

A lot of non-firefighters probably would have answered 3 "lengths of hose". But would that be correct? You don't want to get your a$$ on fire, you always want to keep a distance and a distance of at least 30 feet seems about right to me. So two "lengths of hose" might be enough? The water pressure will do the rest?

Or maybe it is standard procedure to ALWAYS take ONE more "lengths of hose" as anticipated? To prevent having to adjust your "length of hose" at a critical moment and waste valuable time?

Posted by: Wim Prange

Oh, Puhleeze. This is past bending over backwards reaching. Look at what the very first sentence says: Hundreds of aspiring firefighters failed an entrance exam this summer because they could not answer basic math and reading questions, according to the city's personnel chief.

Do you seriously think the answer is anything other than 3?

[Pithlord]

Gary,

I respect guilty white liberalism as much as the next guy. I read the same sociology books you did about how black people can't be racist. (But then I lived in Africa for a bit, and came to think differently.)

The question is whether guilty white liberalism is a good reason to die in afire because the person who came to get me couldn't figure out how long a hose to use.

[Billy Beck]

Hilzoy -- "The basic point of all this is: both the District Court and the Second Circuit seem to me to have been applying the law in accordance with clear precedents. This is what judges are supposed to do."

Really? Hunh. Tell me something: what did judges on these benches rule "in accordance with" before there were precedents?

Big fat fail, Hilzoy. Back to civics class with you.

[Gary Farber]

"I read the same sociology books you did about how black people can't be racist."

I never said any such thing.

"But then I lived in Africa for a bit, and came to think differently."

Indeed, human society is rife with different groups holding more power than another; sometimes it's a majority over a minority, sometimes it's a minority over a majority. Either way, denying it's the case when it's the case is denial of reality.

"The question is whether guilty white liberalism is a good reason to die in afire because the person who came to get me couldn't figure out how long a hose to use."

Again, if you can point out to me where I wrote anything about this issue, I'd find that educational.

[ScentOfViolets]

"Are you saying that 'Assume a length of hose is 30 feet long. A fire is 90 feet away. How many lengths of hose are needed to reach the fire?' is a racist question one way but not the other?"

I have absolutely no idea how you got that out of anything I wrote.

"But what you seem to be saying is that out-and-out quotas are okay."

If you can quote me the sentence in which I addressed the topic of quotas, or anything related to the topic, I'd be surprised and interested.

Posted by: Gary Farber

I think it's pretty clear how I got it: you're saying that if the results fall out one way it's racist, but if they fall out the exact same way only the minority status is reversed, it's not.

Huh!?!?!?

You seem to be saying that if an applicant can't answer answer the question I gave and they're a minority(and this happens with that <80 disparity) then it's 'racist'. But if it were a case where the same disparity existed, only the skin tones reversed, it would not.

Personally, I don't think it's too much to ask of a prospective firefighter that it takes 3 30-foot hoses to reach 90 feet, be they white, black, or metallic green.

Maybe I've misunderstood what you've written, but it sure seems like you think that people who are unable to answer that question should still be given a pass if they are of the right color. That, imho, is nuts.

[Wim Prange]

ScentOfViolets. Admit that you simply assumed people flunked because they could not do simple math. Why not assume the people thought it was a trick question and answered two because that is probably what is done in practice? Maybe they were too smart for their own good?

But I hope you agree that that question was horribly phrased. Not? Would you ever answer a question with: "you need three lengths of" whatever it is you want to use?

[ScentOfViolets]

The question is whether guilty white liberalism is a good reason to die in afire because the person who came to get me couldn't figure out how long a hose to use.

Posted by: Pithlord

You said it much more pithily than I, Pithlord. Yes, that's exactly what I get from what Gary is saying.

I think that the fire hose question could be justified as being reasonably related to job requirements. The issue would be whether the remaining questions were like that, and not questions of the "Who is the president of Azerbaijan?" type-questions not related to the job of fire fighting, or leading a team of fire fighters.

Posted by: stonetools

Well, in the case I described, the courts finally did decide the questions were fair and pertinent. It's there at the bottom of the story if you click on the link(On a personal note, I once taught an 8-week session in East St. Louis back when they were having their accreditation problems. Never again. And if one of my 'students' couldn't answer on that test that nine times six is fifty-four, I wouldn't have been the slightest bit surprised. And no, that's not a racist observation.)

The question then is what the test was like in the Ricci case. That's why these sorts of things are important, all the high-falutin' lawyering aside. And if they were, well, I'd say that the court messed up in this instance - and messed up spectacularly in all the ways conservatives are fond of hanging on to liberals.

[ScentOfViolets]

ScentOfViolets. Admit that you simply assumed people flunked because they could not do simple math. Why not assume the people thought it was a trick question and answered two because that is probably what is done in practice? Maybe they were too smart for their own good?

But I hope you agree that that question was horribly phrased. Not? Would you ever answer a question with: "you need three lengths of" whatever it is you want to use?

Posted by: Wim Prange

You think I'm cringing away from 'admitting' it? Not in the slightest. Yes, I do believe that the people who failed the exam were probably that cringe-inducingly innumerate.

Now, assuming that's the case (you don't have to agree that it is, just assume it for the moment), is that the sort of person you really want to have employed as a fireman? Do you really think that this is too high a standard, or that performance in answering those sorts of questions is really irrelevant to firefighting?

Maybe you just disbelieve that sort of innumeracy and/or illiteracy is possible. I assure you, it most certainly is.

[Gary Farber]

"I think it's pretty clear how I got it: you're saying that if the results fall out one way it's racist, but if they fall out the exact same way only the minority status is reversed, it's not."

Quote the sentences in which I "say" this.

"You seem to be saying" what I wrote. Nothing else. You seem to have a very active imagination.

[Gary Farber]

To be very very very clear, I'll say this very very slowly: I haven't written a single word addressing the New Haven case. Nowhere, no place, at no time.

[ScentOfViolets]

Let me ask you equally slowly then: Do you think that someone should get a pass on not being able to answer questions of the type given in the article I linked to because they happen to be a minority?

If you say 'yes', then I'd say that I was spot on. If you say 'no', then yes, I misread you. I think that's what the person you were replying to was getting at.

[Gary Farber]

"Do you think that someone should get a pass on not being able to answer questions of the type given in the article I linked to because they happen to be a minority?"

I'm going to assume you don't mean that double negative, and that your question is actually "Do you think that someone should get a pass on being able to answer questions of the type given in the article I linked to because they happen to be a minority?"

And my answer is -- and this is the first time I address the subject -- is that, of course, people should be able to answer questions that are relevant to their sought-after job.

On the New Haven case, I have no opinion, as I haven't read enough about it to have an opinion. Which is why I haven't written a word on the topic.

Not a word. I wrote a comment about racism, responding to a comment about racism. Period.

[mattH]

Considering it was a test aimed at people who were already firefighters, designed to classify people for eligibility for promotion why do I get the feeling that rudimentary math was not a significant part of it?

But then strawmen are fun to hit aren't they?

[Dan Ski]

It seems that the case of Bushie can be distinguished from Ricci on at least one important issue.

The Court in Bushie(regarding a test that had its methodology recalculated in order to provide for a higher minority pass rate) stated

"Despite the possible statistical weaknesses in the State's approach,12 the relevant question under Weber is whether in practical terms the plan "unnecessarily trammel[ed] the interests" of the nonminority employees. 443 U.S. at 208, 99 S.Ct. at 2730. Herein, as in Weber, the adjustment plan did not displace any nonminority candidates from the eligibility list (it merely added eight minority candidates to the list), did not place an absolute bar to the advancement of nonminority candidates, and was only temporary in nature. Moreover, the plan in the instant case was tailored narrowly to eliminate the adverse impact of the test and did not aim at maintaining a racial balance in futuro.

It seems to me that the actions of New Haven "unnecessarly trammeled on the rights" of the firemen who did not receive a job promotion because they were white. Maybe I'm reading the case wrong but the District Court did not address this possible distinction.

I also think the main arguement regarding Sotomoyor in the Riccci is not the "poor white guy" but instead what appears to be an Appeals Court apprehensive to dicuss the case. Therefore punting the issue to the Supreme Court.

[ScentOfViolets]

Sigh. If a person can't figure out that you need three thirty-foot hoses to span a length of ninety feet, do you think that this question should be discounted if the person who got it wrong is a member of a minority?

Please. I'm trying to be civil. Don't be oppositional. Now, do you think that this question is relevant to a firefighter's job? If not, why was it on the test?

Things get a little more clear-cut when there are specifics, eh?

[Brett Bellmore]

"Indeed, human society is rife with different groups holding more power than another;"

It's perfectly possible to be powerless and racist, or powerful and not racist, who's got power has precisely squat to do with who's racist. Racism is an attitude, not a power relationship.

The problem here is this invocation of history, to justify fresh injustices against people who weren't part of that history. Which only makes sense if you regard specific people as mere instances of their racial groups, to be treated on that basis, and not on their own merit.

To be treated according to the color of their skin, not the content of their character, one might say...

[Gary Farber]

"Racism is an attitude, not a power relationship."

Completely wrong. In your world, there's no such thing as unconscious racism, apparently.

[Phil]

Racism is an attitude, not a power relationship.

Wrong. Bigotry is an attitude. Racism is a power relationship.

The problem here is this invocation of history, to justify fresh injustices against people who weren't part of that history.

And yet the same groups of people tend to both benefit and suffer directly because of those past injustices. This has been explained to you repeatedly. That you refuse to understand it is . . . interesting.

To be treated according to the color of their skin, not the content of their character, one might say...

Ah, nothing sadder than a white dude trying to claim the mantle of Martin Luther King. MLK would not have agreed with you, to put it very, very politely.

[ScentOfViolets]

I also think the main arguement regarding Sotomoyor in the Riccci is not the "poor white guy" but instead what appears to be an Appeals Court apprehensive to dicuss the case. Therefore punting the issue to the Supreme Court.

Posted by: Dan Ski

It's hard to be sure without having the test in front of us, but I get the distinct impression that punting is what happened all up and down the line. I could very easily see a situation where the results of this test came back in a way that reflected very badly on a minority group. So rather than stick to their guns, or retest those who didn't pass, the board punted. Which was fine, until somebody who thought he was unfairly being cut out reared up on his hind legs and sued. And when it became an issue in the courts, they punted as well.

Folks, sometimes when a group of people do very badly as a distinct minority group, it has nothing to do with 'discrimination' and everything to do with the fact that these individuals are just bad representatives of their minority.

As Brett says (I'm surprised I agree with him) "But a test which says that one particular set of black people cannot be good fire-fighters is NOT clearly a hopelessly flawed test." Is it possible that this is the case? You betcha - I could tell you stories about those East St. Louis kids that would make your toes curl. And no, I'm not talking about anything lurid like fighting or drugs or whatever; I'm talking about straight-up academics.

Going back to an earlier comment:

In fact, she discussed the point in a fashion in the video where she made the point about appellate courts making policy. She noted that they are often less concerned with individual litigants -- though not always -- centering on the overall principles of law.

If this is really what happened, if these people are screaming about bias where no such bias exists or was intended to exist, or was never even thought to exist until the results came back, and if Sotomayor really thought that it was better overall to uphold 'a principle of the law' and let some innocent guy take it in the shorts, then I would be much less disposed to seat her (assuming it was up to me, of course!)

[hilzoy]

ScentOfViolets: I don't think that knowing that it takes three 30' hoses to reach 90' is too much to ask.

That said, the law holds that any test that has a disparate impact is presumptively illegal, period. It doesn't matter what you or I think of the test. The 'presumptively' matters: an employer can rebut this. But when a test has this kind of disparate impact, the employer has to do something: scrap the test and give a new one, justify the test, something.

[Gary Farber]

In 1860 America, slaves were slaves, and "white" people were not, regardless of anyone's "attitude."

In 1954, in Southern states, "black" people still hard to ride in the back of the bus, and used "colored people's" facilities, if there were any, regardless of anyone's "attitude."

I already pointed to Project Implicit, Brett. Try not ignoring links, or science, or facts, please.

Do you actually seriously believe that the only kinds of bias that exist are conscious biases? Is that seriously what you'd try to persuade people is true?

And let us know what your test results are, if you'd be so kind. Thanks.

[hairshirthedonist]

I don't want to get into a big pissing match here, so let's be civil. But I thought racism had to do with unduly attributing characteristics to people based on their (perceived) race, whether consciously or not. I didn't know power was a necessarly component. I also think of racism as one form of bigotry, which also includes sexism, agism, and what have you. Though I tend to think of bigotry as being more negative or hateful. It might be racist to assume that a black guy is a good basketball player, but it's not particularly hateful. Bigotry would be more along the lines of thinking of someone different from yourself as being somehow inferior or of less worth.

[ScentOfViolets]

But when a test has this kind of disparate impact, the employer has to do something: scrap the test and give a new one, justify the test, something.

Posted by: hilzoy

First, let me say again that I don't know what was on this particular test, merely that if the setup was the same as in St. Louis, then somebody been done wrong.

Now, yes, I got that the first time, Hilzoy. But Ricci is a private citizen, yes? How can the law as you have stated it apply to him? In fact, isn't his complaint essentially that the city should not have scrapped the test on the grounds that it was 'discriminatory'? What am I missing here?

[ScentOfViolets]

Try not ignoring links, or science, or facts, please.

Do you actually seriously believe that the only kinds of bias that exist are conscious biases? Is that seriously what you'd try to persuade people is true?

And let us know what your test results are, if you'd be so kind. Thanks.

Posted by: Gary Farber

Er, I tried this implicit association test, and it says that these results are for entertainment purposes only. That being said, I'm white and this test stated that I moderately prefer black people over white, but that I strongly prefer Obama to McCain. Despite the fact that I put down on the sheet that I moderately prefer white people to black.

Imho, this is a terrible test. I can't recognize faces for diddly for some reason, so I have to go by other cues . . . one of them being color. As you can probably guess, the first part of the test was in black and white, the second in regular RGB.