Another Blow to Affirmative Action (Updated)

Conservatives have been attacking affirmative action and the 1964 Civil Rights Law since the Reagan administration.  The Supreme Court has reversed the lower court (Second Circuit Court of Appeals with Sotomayor).  More later…

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From AP:

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. (more…)

Update: One thing is clear. The Supreme Court did nothing to clarify the situation, but instead muddied the waters. The Supreme Court seems to be saying that if you did not intentionally discriminate, then no discrimination exists. This must be just my overly simplistic way of reading this decision. This is obviously a false hypothesis. It’s clearly possible to discriminate against blacks, women and other minorities without doing it “intentionally.” Proving intent would be nearly impossible in most discrimination cases.

This case also points out some of the problems I have with some conservatives who say that judges need to “interpret the law.” The Civil Rights Act of 1964 clearly states that you cannot discriminate based on race but then it goes on to say when an employer can discriminate based on a “protected trait.” So how do you balance these things? The mantra, “interpret the law,” rings hollow.

The Supreme Court focused on a test that was given to these firefighters. Now we know from years of testing students that some tests can reveal racial bias. We know from an elegant study by Stanford researcher that minorities will perform worse a particular test if they are told that this is a test of intelligence. If minority students are told that this is a problem-solving test these students do perfectly well. Their scores are as good as their White counterparts. Ruth Bader Ginsburg’s arguments seem to be solid when she states, “In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.”

Finally, the Supreme Court has breathed just a flicker of hope into the anti-Sotomayor crowd. Over the next 24-48 hours, some conservatives will try to move quickly to capitalize on this momentum. Justice Sonia Sotomayor, they’ll say, is somehow unfit for the Supreme Court because she has a ruling that’s been overturned. This, of course, is a ridiculous statement. Nonetheless, I suspect conservatives will try to push this and get as much mileage out of this is possible. As Glenn puts itIn light of today’s ruling, it’s a bit difficult — actually, impossible — for a rational person to argue that Sotomayor’s Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel’s ruling; and now: (d) four out of the nine Supreme Court Justices — including the ones she is to replace — agree with her.

Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did. It’s perfectly reasonable to argue that she ruled erroneously, but it’s definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.

Update II: Balkination has more technical questions about this Ricci decision and how will it affect the Voting Rights Act.

0 Responses

  1. Great news that another body blow has been delivered to racist affirmative action programs. When will people learn that race-based programs, are, well, racist? There is no excuse, no reason, no justification for any kind of race-based selection for anyone for any reason. Racism is wrong on all fronts, and for those that endorse the programs, then you sre simply extending the legacy of racism, as much as you think you are “solving” it.

    I never heard Sonia S. thank race-based programs for her being nominated to be a Justice. She thanked her family, hard work, and all sorts of other traditional, feel-good (conservative) things, but she did not thank any affirmative action (liberal) programs for where she’s ascended to. Maybe because she’s embarassed to admit it?? But she thinks that race should be a consideration as far as the New Haven firefighters are concerned. Go figure!

  2. Now we know from years of testing students that some tests can reveal racial bias. We know from an elegant study by Stanford researcher that minorities will perform worse a particular test if they are told that this is a test of intelligence. If minority students are told that this is a problem-solving test these students do perfectly well.

    This is the most ridiculous statement that i ever heard in my life.
    Where did you get all this BS?.

    Are you telling me that how you name a test will have an influence on any normal person?. They could name it the stupidity test and it shouldnt make a difference, or better yet dont name it.

    How can a test be racially biased?.

    No minority did well on that test so it MUST be racist. *facepalm*.

  3. Morgan99 –

    If you give a test an 90% of the White students passed and only 10% of the Black students pass then what is that?

    I love when people haven’t done any reading on a subject and they just dismiss me and call what I write BS. Now, some of what I write is BS. That’s probably the part that you agree with.

    Here’s the exact quote from Time Magazine

    Poor kids going to dismal schools doesn’t explain why rich black kids score worse on average than white kids. Stanford psychologist Claude Steele has a theory that might explain it. His research shows that even high-achieving African-American pupils may be distracted by a fear that they will confirm the stereotype that blacks don’t do well on intelligence tests. Steele has tested his theory by giving an exam to two mixed-race groups of students. One group was told that the exam was a simple problem-solving exercise; the other was told that their scores would show how smart they were. The white kids scored about the same no matter what they were told. The black kids who thought they were taking an intelligence test performed considerably worse than those told the test was no big deal.

    So, how do you explain this? This may surprise you but there is more to taking a test than simply reading material and spitting up the answers. How the questions are arranged and worded can and does change the answers.

    I appreciate your comments. Thanks.

  4. There is a science to making up tests (science, by the way, means that you test hypotheses with empirical evidence). Any test should be suspect unless it has been validated by evidence independent of the test.

    In the case of the fire-fighters, one way to validate the test would be to interview the population of fire-fighters individually and have them rate their peers and subordinates on performance relevant to the job.

    If the opinions of the population correlate well to the test results, then you have reasonable evidence of the validity of the tests. Other evidence might include independent, post-action reviews of actual fire fights.

    However, things aren’t always so simple. There are, what are called, “confounding influences.” If the population is racist, then peer rankings will validate a racist test.

    When responsible social scientists try to understand their fields, they work very hard to validate their results, including relying on independent studies that confirm or refute them.

    Up to now, I have seen no evidence indicating whether this test was rigorously validated or not. Blanket statements about right and wrong in the absence of such evidence are suspect at best.

  5. Ah-hah. Spoke to soon. From the New York Times article:

    “The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it.”

    All they had to do was validate the test, and they would have known one way or another. They should have done it before declaring it the official test. From my perspective, this is less an issue of racism and more an issue of irresponsible test design.

  6. EC – “If you give a test an 90% of the White students passed and only 10% of the Black students pass then what is that? ” In specific reference to this case, I call it poor preparation by the Blacks.

    A man with dyslexia qualified for promotion based on this test. He took extreme measures to prepare himself, and he qualified.

    I also read that the test was reviewed by an outside source to check for racial disparities before the test was given, and the test was approved by the outside source. I see no reference of that in this article; it seems like something the courts would have considered in their rulings.

    You cannot solve discrimination to one group by discriminating against another. Specific to this case, we were prepared to discriminate against one group just to avoid the PERCEPTION of discrimination against another, and 11/21 judges said that was ok. We have lost our collective minds.

    EC – your take assumes discrimination and makes absolutely no mention of personal accountability. I just do not understand that mindset, and yet it seems prevalent in the discussions I read about this case. I would greatly appreciate it if you could answer these questions: What are the specific barriers that the Blacks who took this test faced that were unique only to them? How are those barriers greater than those faced by a man with dyslexia? When you were in college and medical school, did you require that the tests be modified because of your Blackness? Assuming the answer is no, why would you argue for that here?

  7. Brad – You are 100% correct but that is only if they (New Haven) anticipated the Supreme Court ruling.

    thanks for your thoughtful comments.

  8. Bill –

    Although it is nice that someone studied very, very hard for this test, it’s not germane to the discussion. It doesn’t matter if he was a genius or not. The question is, as the Supreme Court saw it, was the test fair and did New Haven do everything it could to make sure the test was fair. I find it interesting that conservatives are focusing on this guy with dyslexia when they are arguing that empathy should not be part of a legal decision.

    All tests have some inherent bias. Whether it is a Anglo-Saxon bias or not depends upon how the test is made up in what is the subject. Please see Brad’s comments (above).

    I’m glad you asked about my personal experience. I remember taking the test back in high school and again in college. I took it to the professor/teacher and specifically went over all the questions I “got wrong.” I was accused and both times of changing my answers. When I mentioned that there were no racial marks and no liquid paper marks I asked them to retract that accusation. The tests were greater wrong because they assumed that my answer would be wrong. Maybe it was the way that I phrased my answers but two highly respected educators were wrong enough adding more than 15 points to my tests on two separate occasions.

    Thanks for your comments.

  9. If some conservatives are focusing on the firefighter with dyslexia, its not out of empathy, but out of proving that if someone works hard enough, then they can achieve what they want. It is not an empathy thing at all. He took every step necessary, and then some (because of his dyslexia), and then despite all his best efforts, and his passing the test, he was still screwed, simply because blacks did not accomplish the same thing. The short answer to this whole mess is that if everyone worked hard enough at preparing for the test, then they all would have passed. Even if there are some inherent cultural biases in the test, if you study hard enough you can work through those regardless of what race you are.

  10. I’m not sure what that feeling is that you’re trying not to describe. It’s exactly empathy. Yes he worked hard. I am very happy for him. There’s nothing like hard work to make you feel good about yourself. Yet, that has nothing to do with the case. You are naïve if you think that just because people work hard and study hard, they will pass a test. Data suggest you need to learn how to take tests that is at the least as important as learning the subject of the test.

    Anyway, thank you for your comments. I always appreciate your input.

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Errington C. Thompson, MD

Dr. Thompson is a surgeon, scholar, full-time sports fan and part-time political activist. He is active in a number of community projects and initiatives. Through medicine, he strives to improve the physical health of all he treats.


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