By: Tim Wise
To wit, their utterly fallacious hit job on the Community Reinvestment Act back in September, in which they blamed the subprime mortgage meltdown--and virtually the entire economic crisis--on black and brown poor folks who received loans for which they were unqualified thanks to liberal reforms. A few months later, the generally splendid and fair-minded news reporters at the Journal utterly debunked the claims that the CRA had been the cause of the problem, but this mattered not to the editorial staff. They never printed a retraction for their wrong-headedness. Dishonesty in the pursuit of Austrian economics is no vice, apparently.
This week, the Journal was at it again, taking their reactionary mendacity to new heights, as they weighed in on the "reverse discrimination" case being considered by the Supreme Court. To hear the editors tell it--and this is a position advanced by conservative radio and even some mainstream journalists--Frank Ricci and his seventeen co-plaintiffs were the victims of unfair "racial preferences" for blacks in the New Haven, Connecticut fire department. Although they had scored highly enough on their supervisor exams to be promoted to one of several open positions for lieutenant or captain, the test was ultimately tossed out, supposedly because no black test-takers had earned a score that would have qualified them for such a promotion. Decrying the blatant racial balancing that such an action is interpreted to signify, the right has been portraying Ricci, et al. as the latest poster children for white victimization. As the Journal explained it on April 22 (the day the Court heard oral arguments in the case) "the plaintiffs deserve to have the law applied equally-whatever the color of their skin."
Not only was the decision by New Haven authorities unfair generally, according to this narrative, but it was especially injurious to Mr. Ricci, who, the New York Times informs us gave up a second job so he could study "up to thirteen hours a day," and who, because of his dyslexia, "paid an acquaintance to read textbooks onto tapes" for him, and who practiced day and night, using flashcards to help him remember the minutiae that would no doubt find its way onto the test. Ricci scored sixth out of seventy-seven firefighters who took the exam, and would have stood a good chance of obtaining one of the leadership positions had the test been certified by officials in New Haven.
Although one is free to disagree with the decision to throw out the test, before reaching such a conclusion it would help to know the facts--all of them--behind the case. Sadly, one will not glean such information from the snippets provided thus far in the news, or from the blatantly inaccurate account in the Journal editorial. Though they suggest, "the facts of Ricci are not in dispute," nothing could be further from the truth. They are, and the facts as articulated by the Wall Street Journal couldn't be more incorrect.
Facts of the Case: What Ricci is and Isn't About
According to the Journal editorial, New Haven officials "don't deny that their decision was based on race." But as a matter of fact they do, quite strenuously. And never, contrary to the claim in the Journal, have they argued that tossing the scores was necessary because of the need to promote diversity in the fire department. Though others have made the diversity argument--such as a national organization for black firefighters, whose spokesperson insists that kids of color need more role models--this position played no part of the city's defense. They are not arguing that merit should be cast aside so as to promote racial balance, or so that black kids will have someone to look up to. Rather, it is their position, amply documented in the record, that the tests on which Ricci and the other plaintiffs did so well, and on which blacks did so much worse, were invalid indicators of ability. As such, throwing them out did not amount to sacrificing standards, and did not deny Ricci or the others anything to which they were morally or legally entitled. To be promoted on the basis of a flawed exam is not a right, philosophically or constitutionally, that either Ricci or any other person can claim to hold. That the Journal implies "diversity" is the only reason offered for throwing out the scores--when it was not even among the reasons offered--suggests a duplicity uncommon even for such persons as these.
That the city concluded the test was flawed is critical here, because it suggests that tossing out the scores was not merely a pretext for racial discrimination against the white firefighters. This is ultimately the Constitutional issue at hand, which the Court is being asked to decide, and which two previous courts have decided in the city's favor. Rather, New Haven's actions were based on a determination that the standard being used was inadequate to the task of picking those who would make the best supervisors, and that if they used it, they might be subjected to a successful lawsuit under Title VII of the Civil Rights Act. Under the law, policies that have a disparate racial impact are prohibited, unless those policies can be deemed directly related to job performance. Because they felt the test might not be defensible on those grounds, the city threw out the results. But this decision was about test validity, rather than being based on a desire for racial balance as some larger social goal.
Importantly, the decision to disregard the exam was not made in haste. Instead, the city, concerned by the red flags raised as a result of the large racial disparity on the test, opted for a scrupulously fair and methodical process of evaluation before choosing to throw out the scores. First, they turned the decision over to a civil service review board. Then, at the request of those who wanted to use the scores, the only African American member of that board voluntarily recused himself from the process. As a side note, that such a request was even made indicates the depths of white privilege that permeated this process. After all, to believe the black board member would somehow be biased, but that the white members would be racially neutral and objective is an inherently racist notion.
Then the Board held five days of public hearings, during which they heard testimony from supporters and opponents of the testing procedure, including experts on both sides of the issue. One of the experts, an industrial psychologist (which is the very field whose practitioners develop tests like the one for the New Haven fire department) noted how surprised he was by the extent of the racial disparity on this particular test. Although such exams often produce racial differences in outcomes, they are rarely if ever this pronounced, he explained. Indeed, in this particular case, black test-takers who had previously ranked 3rd and 5th on exams for the same positions (and who had just missed being promoted in the past) only managed to rank 13th and 15th respectively: one on the lieutenant's test, and another on the test for captain. That such a regression would occur for persons who had previously done so well was another reason the test's validity seemed questionable.
Also, according to testimony offered by several experienced firefighters, there were several problems with the content of the exam. First, some material on the test was completely inapplicable to the New Haven community, and other questions actually had correct answers that were contrary to local firefighting policy. For instance, one question asked whether it was best to approach an emergency from uptown or downtown--terminology with no valid meaning in New Haven given the way in which the community is constructed--and another offered several multiple choice options among its answers, none of which happened to be the correct answer, in line with New Haven policy.
Secondly, as even the test makers admit, the source material to which they turned in order to construct the test often involved contradictory information, increasing the likelihood that items selected would potentially have "correct answers" that were open to interpretation and dispute.
Additionally, the weighting system used for the exam, by which the written portion would count for 60 percent of the total score, and the oral portion, 40 percent--which was mandated by a union contract, rather than any independently validated scientific logic--was also questionable. As one witness testified, nearby towns that used different weighting systems had managed to get equally capable firefighters and supervisors, while witnessing far less racial disparity.
Also during the hearings, experts noted several methods of testing for supervisory ability within a fire department, which would have been more genuine indicators of ability than a multiple-choice exam. Alternative tests, which would test for "situational judgment," were explained by the industrial psychology expert to be far superior in such cases, as were other alternatives. Interestingly, had the city simply altered the test by requiring passage on both the oral and written sections separately--rather than allowing poor oral skills to be compensated for by high written scores--a black test-taker would have qualified for promotion and two of the whites who did would not have. Likewise, had they been allowed to round scores up to the nearest full integer (reflecting the commonly understood social science truth that fractional score differences can result from random chance and say nothing about real aptitude), four blacks would have qualified. And if they had merely weighted the test differently, as other communities have done, giving more weight to the oral exam than the written, two black test takers would have been in the running for a lieutenant position, and one would have been in the mix for captain.
That the test was understandably viewed by the city as being a flawed indicator of merit seems logical. After all, the test designers, despite promising to subject their methods to outside scrutiny by several fire experts, and despite insisting that they would subject their test to content-validation, so as to come up with a scientifically valid "cutoff" score, below which one could reasonably assume a test-taker lacked the needed skills for promotion, and despite admitting that this process was "critical" to undergo, failed to take any of these steps. Not only did they submit no explanation of their methodology to the city--despite being required by their contract to do so--the steps they took in developing the test suggest a random and haphazard process at best. So, for instance, the designers adopted an arbitrary score cutoff for test passage, based not on independent social science validation or evidence, but rather, on the cutoff previously set by city bureaucrats: a cutoff that the designers themselves acknowledge was "not very meaningful" in determining competency for being a fire department supervisor.
Finally, it should be noted that one of the members of the civil service review board, who ultimately voted against certifying the test results, had originally favored certification. Yet the five days of testimony convinced him that the process had been flawed and that there were several alternatives available, all of which would have been at least as good if not better at selecting the most qualified persons for promotion, but which would have had the additional benefit of producing far smaller racial disparity. Given that legal precedent prohibits using tests that produce a disparate impact if there are readily available, less-disparate alternatives that are just as valid, the Board acted in the only permissible manner under civil rights law. This is what the previous courts have ruled, and it is the only rational conclusion given the facts of the case.
The Legal Issues and the Dangers of a Plaintiff's Victory
Importantly, as a matter of law, it makes no difference whether or not the test can be proved a flawed instrument. The burden is not on the city to prove a matter of social science in order to defend itself from the claim of unlawful discrimination. All the law requires is that their decision not be a phony pretext for discrimination against the white firefighters. And to prove that, even the most onerous of legal burdens holds merely that the city must have had a "strong basis" for believing the test to be unfair and invalid. Given the ample testimony provided throughout the public hearings, and given the unusually large racial disparity that manifested on the exam, their concerns were clearly reasonable.
Yet, based on the questions asked and statements made by several justices during oral arguments this week, it appears likely that at least four members of the Court will rule in favor of the plaintiffs. If Justice Kennedy joins them in this, the 5-4 decision would set a dangerous precedent for civil rights law, and strike a serious and destructive blow against the cause of equal opportunity. To say that New Haven was legally required to use the test scores, and that to throw them out was inherently discriminatory against whites because they scored better, would mean that whites would now be able to sue any institution--a college, an employer, a government agency, anyone--that adopted a policy, practice or procedure that had the effect of diminishing their pre-existing advantage. For example, if a school decided to minimize the importance of the SAT for admissions, or to disregard standardized test scores altogether (as some have done, in part because of the racial disparities on the test, and also because such instruments are known to be flawed indicators of ability), whites (assuming Ricci wins) could sue the school, claiming that their "rights" as whites to reap the benefits of their superior performance (even on a flawed test) had been violated. Institutions would be forced to use merit selection instruments that maximized white advantage, because to choose a less disparity-producing instrument could be seen as somehow anti-white by the twisted logic of the plaintiffs' claims in Ricci.
A Ricci victory would throw civil rights jurisprudence into utter chaos, as well. In effect, such a result would mean that the court had said employers must take actions that produce disparate racial impact against people of color, or else be sued for disparate treatment of whites. In other words, they must violate one part of Title VII in order to not violate another portion of it. That such a holding is repugnant to the legislative intent of those who framed the law should be obvious. For the Supreme Court's conservatives, who claim to be "strict constructionists," beholden to legislative intent, to find for Ricci and thereby shred the framer's intent for Title VII, would make a mockery of their entire judicial philosophy, and demonstrate the disingenuousness of their claims to believe in it.
Not only that, but if employers were required to use tests, even when they produced a disparate racial impact--or even because they produced that result, and thus, to do otherwise would injure the group that scored higher--this would effectively remove disparate impact altogether as a valid category of civil rights law, overturning not only legislative intent, updated as recently as 1991, but almost forty years of judicial opinion. And if this were to happen, it would mean that any policy, practice or procedure, no matter how significantly it disadvantaged a particular racial group, would be legal, unless it were possible to prove that the standard had been adopted intentionally so as to block access to certain groups: a virtually impossible standard to meet, even in the most blatant of cases.
Conclusion: Doing Right by Ricci and Black Firefighters
Although the media has spun this story as one of an innocent and highly qualified white man (and his colleagues) being unduly burdened by political correctness and a de facto quota system, the simple fact is, no one, no matter how hard they studied and how well they performed, is entitled to benefit from a testing process that was itself flawed. Ricci, if he is truly the best person for the job--or at least one of them--should be able to rise to the top on any exam given to him, including the kinds that would actually measure his ability to be an effective supervisor. His anger, in this case, should be directed not at the city for throwing out the scores, including his own, on the bogus test; rather, it should be directed at the consulting firm that concocted a flawed test in the first place, or perhaps the union that represents him, and which opted for the arbitrary weighting process, which resulted in such large racial disparities. Had New Haven adopted any of a number of other type exams, or merely sought to have the existing exam validated--in which case flaws would likely have been caught and corrected, thereby making the test legitimate--Ricci would likely have still scored highly. He seems, by all rights, qualified. But to reward him for his performance on a terribly flawed test is to punish others who underperformed, but who would have done better on a different exam. And what of their hard work? What of their hours of study? What of their dreams? Oddly, no one seems concerned about them.
Hopefully the Court's reasonable members will see both the factual and legal truths of this case, thereby striking a blow for fairness and high standards all at the same time. And then hopefully New Haven will get on with devising a new process, whereby Frank Ricci and his talented colleagues--including the black ones--can obtain the positions they so rightly deserve.