Yeah, yeah, I know this issue is like so 2009. I mean it came out last April for frick’s sake. But I felt I had something to contribute and I thought I would do it, now.
We should start by talking about the facts. You can read the whole opinion, here. But this is the short version, with me editorializing a little.
Basically in New Haven they decided that it was time to have an examination to determine who should be promoted in the firefighter ranks. They went to great lengths to ensure that African Americans did well, but when they got the results back, they said, more or less, “oh shit. Too many white people got the best scores.” So then they decided to throw out the scores.
So Ricci and most of the other firefighters up for a promotion sued. The city defended its conduct on the theory that their test had a disparate impact and thus if they didn’t throw it out, they would be sued.
Now, first, let’s dispose of something important. This was racial discrimination. They were ready to promote based on this test until they realized that they didn’t like the color of who did best. That is racial discrimination, pure and simple. That doesn’t end the inquiry, mind you, because not all racial discrimination is automatically illegal, but let’s get that part right.
In Grutter v. Bollinger, what the Supreme Court really said is they want to approve of each use of race. Of course that is a pain in the behind for the government, but I am at a loss to come up with an alternative. They shouldn’t be able to just say the words “affirmative action” or “disparate impact” and get a free pass, or else those terms will be invoked in situations where they don’t really apply.
And, bluntly, the safer course would have been this. First, throw out every question that has no application to new haven (there were a few). Then re-score the test based on that change. Then, unless they can show the remaining questions were unfair according to race, certify the results.
Because here is the reality of the situation. I have pointed out in the past where I thought that disparities existed in tests. For instance, I have taken hundreds of IQ tests, and I remember one in particular that asked about the meaning of the book of Genesis, but only asked generally what the Koran was. So clearly that is a test that favors Jews and Christians over Muslims, because while the first group is rewarded for specific knowledge of their holy book, the second is not, and I said so at the time. But I don’t think that kind of thing is happening here. I would be really surprised if they are asking questions on the test that is rewarding one set of knowledge that white people are more likely to have, and not exploring areas of knowledge that African Americans are more likely to have, which pertains to firefighting.
There are actually four possibilities to explain it that I think are more likely. The first is that this is just a statistical burp. I believe the average white person is just as suited as the average black person to be a firefighter, but that doesn’t mean that there are never any statistical deviations from that in particular places. In one community, I would assume that more black people than whites would make great firefighters; and in another, more white people than black people would be.
The second is that something in New Haven society keeps the best potential black firefighters from becoming firefighters in the first place, that doesn’t restrain white persons.
The third is that maybe the African American firefighters could have done better but effects of discrimination over their life have held them back. So for instance, maybe their minds simply haven’t been nurtured over their lifetimes as much as the white firefighters.
And the fourth is that maybe in the past New Haven has practiced discrimination against African Americans, so that in the past firefighters were more likely to be white. So then those white firefighters very often raised their children to follow in their footsteps and therefore have given their children a lot more training in the area of firefighting. So maybe Ricci is a great firefighter in part because his daddy, and his granddaddy, and his great-granddaddy were all firefighters, and he benefits from all of that familial knowledge. (Speaking hypothetically; I don’t know nearly that much about Ricci.)
I have a feeling that the last one is the most likely possibility.
Now, in all of those possibilities it is still the case that as of this day, the best scorers on the test are likely the best firefighters, and if there is any discrimination to blame, it is not the test itself, but forces outside of the test itself. And however much we might lament those outside forces (and I do) and the wasted potential, the fact is if your house is burning down, do you want the guy who would have been a great firefighter but for discrimination that keeps him from acquiring the knowledge to be a great firefighter, or the guy who is right now a great firefighter?
The question answers itself.
It also suggests that rather than taking the easy way out by quotas and the like that New Haven can and probably should engage in an aggressive program of developing African American firefighters to their fullest potential. So the affirmative action should be there, in the form of affirmatively finding black potential and developing it. Rather than ignoring what are more likely than not real differences in knowledge and ability, New Haven should instead work to erase those actual differences.
Which is indeed what is so pernicious about the de facto quota they tried to establish here—it would have allowed New Haven to ignore the underlying reasons for the disparity, rather than address and correct them. It doesn’t do the people of New Haven or the black firefighters themselves any favors if they are promoted when they don’t deserve it.
The ruling in Ricci was a positive step in the right direction. It is now on the authorities in New Haven to work to actually erase the racial differences that exist there, rather than just covering them up.
(significantly adapted from comments I left at another blog)
