Fighting Fire with Fire

A debate in the New Haven Fire Department over discrimination in the name of equal opportunity

Damon W. Root | April 28, 2009

Does an employer ever have the right to discriminate on the basis of race? Does the government? Those were among the issues the Supreme Court faced last week last during oral arguments in the case of Ricci v. Destefano. What it decides could have a lasting impact on the web of rules governing the American workplace.

The case centers on 15 captain and lieutenant vacancies in the New Haven, Connecticut, fire department. In 2003 the city administered a test to fill those spots, but when the results came in, 14 of the top-scoring applicants were white and one was Hispanic. No African Americans made the cut. In response to local pressure, the city then refused to certify the results and decided instead to leave the positions open until a suitable new test was developed. This prompted a lawsuit from a group of white firefighters who had been denied promotion, including lead plaintiff Frank Ricci, a 34-year-old dyslexic who says he spent months preparing for the now-voided test by listening to audiotape study guides as he drove to work.

"The city did the right thing," New Haven Corporation Counsel Victor Bolden told The Los Angeles Times. "Someone was going to be disappointed, and we could be sued either way." He's certainly right about that last part. Under Title VII of the 1964 Civil Rights Act, business practices that have an "adverse impact" on members of one particular race are illegal except when those practices are demonstrably "job related" and "consistent with business necessity."

For their part, the white firefighters argue that the city broke the law by taking their race into account when deciding whether or not to honor the results. Keep in mind that there are no credible allegations of racist intent against the actual exam. To comply with federal law, New Haven vetted the test with independent experts before administering it. We're only talking about the racially uneven outcomes.

But shouldn't intentions also matter? In a friend of the court brief filed on behalf of Ricci and his fellow plaintiffs, the Cato Institute, Reason Foundation (the nonprofit that publishes this website), and the Individual Rights Foundation argue that direct evidence of racist intent should be the deciding factor. As the brief notes, that approach would allow employers to make use of valid, race-neutral tests that, "although they generate race-based statistical disparity, are good for both business and the public interest generally."

The liberal legal scholar Jeffrey Rosen recently put forward a similar opinion, writing in The New Republic that "in the workplace, the current regime puts pressure on employers to abandon the neutral tests for promotion that are the main opportunity for advancement available to many working-class employees." In Rosen's view, a quota-driven employment test "makes less sense today than it did in the 1970s and 80s, when the country was still dealing with the legacy of workplace legalized segregation." (Rosen would prefer to see the government paying closer attention to possible racism in entry-level hiring decisions.)

Others on the left take a less kindly view of the plaintiffs' case. Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, is worried that "the conservative Justices who adhere to an overly simplistic view of a 'colorblind' Constitution" might very well find that the city acted illegally. In her view, the idea of a colorblind Constitution is little more than a "slogan" or "hopeful catchphrase"—a strange thing to hear from someone whose own organization is devoted to the dubious goal of "fulfilling the progressive promise" of the Constitution.

Wydra also neglected to mention that this "overly simplistic view" has a long and distinguished history, including Justice John Marshall Harlan's eloquent dissent in Plessy v. Ferguson (1896), where he rejected the majority's embrace of "separate but equal," arguing instead, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

So what's the Supreme Court likely to say here? During last week's oral arguments, the Court divided neatly between left and right, with the four liberals seemingly sympathetic to the city and the four conservatives siding with Ricci. Which once again leaves Justice Anthony Kennedy as the likely swing vote. As an indication of Kennedy's thinking, consider the following exchange with Deputy Solicitor General Edwin Kneedler, who had just claimed that New Haven did not sort the test results by race. "Counsel, it looked at the results, and it classified the successful and unsuccessful applicants by race...and you want us to say this isn't race? I have trouble with this argument." Given that Kennedy's previous jurisprudence has been fairly libertarian on the subject of race-based classifications, this was a telling moment, suggesting that Kennedy is open to the plaintiffs' charges of reverse discrimination.

Which he should be. It's one thing for the government to forbid hiring practices (including those crafted to appear race-neutral) that intentionally discriminate. That's at least fully consistent with Title VII. But it's another thing to throw out perfectly valid civil service test results simply because the city doesn't like the outcome. There's nothing fair about that.

Damon W. Root is an associate editor at Reason magazine.

Comments

phalkor|4.28.09 @ 5:04PM|#

Reverse racism isn't real; it's just a figment of my imagination produced by a subconcious longing for the days of Jim Crow.

|4.28.09 @ 5:11PM|#

I think there is a word for people who don't like the results of a race-neutral test because members of their race can't score high enough. I just can't remember what it is.

fantastical blurry thing|4.28.09 @ 5:13PM|#

We want the best that a quota system can supply!

Barry Loberfeld|4.28.09 @ 5:13PM|#

All you need against affirmative action.

guy in the back row|4.28.09 @ 5:15PM|#

Off topic, but my uncle was a firefighter in New Haven for about 25 years, from the 60s to the 80s.

He wasn't on duty during a fire for the first 8 years he worked. He said he was actually afraid while driving to that first fire that he had forgotten what he learned during traing.

He did learn to cook tasty meals while on the job!

Barry Loberfeld|4.28.09 @ 5:18PM|#

A sampling:

"If bigotry is the natural reflex of the social
masses, why have racists always had to turn to the State to keep
people of different races from teaching each other, hiring each
other, marrying each other, and basically living together as members
of the same society? Indeed, if there is an organic relationship
between racism and capitalism, then history's greatest racist should
also have been its greatest capitalist. Our text books would record
how Adolf Hitler and his National Capitalist Party created the
ultimate racist regime by implementing completely the libertarian
free-market agenda: an unregulated economy, freedom of expression,freedom of sexuality, private education, open borders, equality before the law, anti-militarism, etc. Of course, actual National Socialist policy was the polar opposite on every point.
Hitler chose totalitarian socialism (that is, total socialism) as the means to his racist end because he understood what every other racist has always understood: that mass bigotry is "socialist,"
not capitalist -- statist, not societal -- in nature. Our
anti-discrimination laws were not a response to a history of market
bias, but a deduction from the tenets of Leftist dogma, which now
seeks to redeem the ideology of statism by placing the blame for
bigotry on the American people."

IceTrey|4.28.09 @ 5:23PM|#

I'd like some information on how many of each race took the test. If there were 50 whites, 4 blacks and 2 latinos then the outcome of the tests really don't have anything to do with race. It's just how the statistics work out. What percentage of each race took the test?

hmm|4.28.09 @ 5:25PM|#

I worked for a municipality for several years. At one point I considered applying for a program as a cadet with the municipalities fire department. I had my NREMTP license and about 2 years with the city at the time. I was flat out told the position was solely for black people. Not minorities, black people. The same city has two departments of more than 20 people with only black people, again not minorities. Civil service is a farce when it comes to equal opportunity.

hmm|4.28.09 @ 5:25PM|#

Fire departments are notorious for this kind of action.

|4.28.09 @ 5:35PM|#

I agree with IceTrey to the extent that this may just be a red herring designed to throw out legit results. Funny how uber-political city governments look to the convenient rather than the fair.

Can I just declare that my tax money went to an industry that discriminated against Americans by being wasteful and greedy? Can I get that money back now? Didn't think so...

Gilbert Martin|4.28.09 @ 5:43PM|#

"Civil service is a farce when it comes to equal opportunity."

You mean civil service isn't actually civil?

What a shocking development!

bubba|4.28.09 @ 5:48PM|#

If a large number of cities use a race-neutral test, then by chance, some of them will promote too many whites, and some will promote too many blacks.

But the cities who promote too many whites are racist.

wayne|4.28.09 @ 6:18PM|#

If a large number of cities use a race-neutral test, then by chance, some of them will promote too many whites, and some will promote too many blacks.

bubba, if you read "The Bell Curve" you will be dissuaded that a race-neutral test will ever result in the outcome you describe.

By the way, as far as I can tell, the race-baiters have never seen a race-neutral test.

perilisk|4.28.09 @ 6:57PM|#

"Fire departments are notorious for this kind of action."

Because they know fighting fires is dangerous and minorities are more disposable. It's really pro-white racism when you think about it.

Jordan|4.28.09 @ 7:00PM|#

Barry Loberfeld | April 28, 2009, 5:13pm | #

Very interesting essay. Thanks for that!

|4.28.09 @ 7:03PM|#

Although I am not a fireman, my background in safety engineering has given me exposure to much of their responsibilities. There is considerable overlap in training between parts of the professions.

There is a great deal of data and procedures to remember and be able to implement. In many ways, firemen must be jacks of all trades in the rescue and emergency response business. Get it wrong, and lives may be lost.

Testing for this professional development is crucial to assuring the public of the best possible service in emergencies.

The racial chicken-littles will endanger the public if they get their way.

|4.28.09 @ 7:04PM|#

Fire departments are notorious for this kind of action.

As are post offices and DMVs. If you're a female minority, you're practically guaranteed a gov't job.

DavidW|4.28.09 @ 7:13PM|#

Since government's business comes from theft through the tax payer, it all makes it easier for government officials to twist hiring processes toward unproductive ends. In this case, using race to filter out applicants.

|4.28.09 @ 7:17PM|#

The egalitarians / dispensers of all things p.c. will not rest in cases like these until, like some basketball games among kids, we just stop keeping score all together.

Don't measure me, bro!

Joe|4.28.09 @ 7:19PM|#

The term "reverse discrimination" is discrimination.

|4.28.09 @ 7:26PM|#

Testing for this professional development is crucial to assuring the public of the best possible service in emergencies.

The racial chicken-littles will endanger the public if they get their way.

It sorta already has. See cops, women and physical fitness/strength standards. Someone should be calling me a sexist for stating the obvious shortly.

|4.28.09 @ 7:43PM|#

Do you think Obama will ask Larry Summers to publicly weigh in on this one?

Douglas Gray|4.28.09 @ 7:44PM|#

What if the NBA had to fill their rosters by racial quotas? Not enough Dirk Nowitskis and Larry Birds out there.

Suppose you hire a 2nd rate firefighter due to racial quotas and someone loses their life? Racial quotas are unfair in any case, but especially for emergency workers.

engineer|4.28.09 @ 10:16PM|#

"If a large number of cities use a race-neutral test, then by chance, some of them will promote too many whites, and some will promote too many blacks."

Define "too many". Doubtless there will be disproportionately large numbers of some races hired, but saying it's "too many" whites or blacks hired as firefighters is like saying there are "too many" Asian computer programmers.

engineer|4.28.09 @ 10:17PM|#

Assholio,
Your name is appropriate.

Dylan|4.28.09 @ 10:45PM|#

I would like to call their bluff, and see a proposal for a new 'less racist' test.

I'm being facetious of course, they have no such proposal. I would be surprised if the plaintiff's supporters actually knew what the test consisted of.

Holy Roman Emperor|4.29.09 @ 12:37AM|#

"Civil service is a farce when it comes to equal opportunity."

You mean civil service isn't actually civil?

What a shocking development!

Some would not call it service, either.

just sayin\'|4.29.09 @ 1:33AM|#

Ever notice objective scientific testing almost always does a lot more to reenforce our ancient, ignorant prejudices than it does to reenforce our modern, enlightened understanding?

Mad Max|4.29.09 @ 4:24AM|#

'He did learn to cook tasty meals while on the job!'

And he saved money, too - he didn't have to buy his own stove or anything.

Name:|4.29.09 @ 4:27AM|#

Physics doesn't do that.

But yes.

Name:|4.29.09 @ 4:27AM|#

NO CUTS

ed|4.29.09 @ 8:41AM|#

Does an employer ever have the right to discriminate on the basis of race?

Yes.

Does the government?

No.

Rob Claus|4.29.09 @ 9:07AM|#

To the headline editor: Did you really have to call it "Reverse discrimination"? The word "discrimination" in itself does not imply any particular direction.

When I was in college, the black activist groups would try to defend racist policies by claming that "reverse racism" doesn't exist. They were right. There is no such thing as "reverse racism", it's just racism. Calling it "reverse racism" just sounds stupid, and distracts from the real issue.

|4.29.09 @ 9:25AM|#

Calling it "reverse racism" just sounds stupid, and distracts from the real issue.

It highlights the reality that racism is, in actual fact, impossible for members of a minority to be guilty of. "reverse racism" is a semi-ironic term that captures this perfectly.

Kyle|4.29.09 @ 11:44AM|#

Wayne- The bell curve, seriously? And the earth is 6,000 years old as well, right? Something tells me on the actual bell curve, you are on the flat part, left side.

|4.29.09 @ 12:34PM|#

Define "too many".

More than the percentage represented in the local community. If you've got 80% white people in your town, and 81% white people in your company/department, you've got "too many" white people.

|4.29.09 @ 12:35PM|#

It highlights the reality that racism is, in actual fact, impossible for members of a minority to be guilty of.

domo, do you mean the "reality" or the "mistaken belief"?

wayne|4.29.09 @ 1:40PM|#

Kyle,

Yes, The Bell Curve, seriously. Refute it, if you think you can; it consists mostly of actual empirical measurements, i.e. facts. You might not like those facts, but they are none the less, facts.

The New Guy|4.30.09 @ 7:49AM|#

"Wayne- The bell curve, seriously? And the earth is 6,000 years old as well, right? Something tells me on the actual bell curve, you are on the flat part, left side."

Smooth. Don't bother disproving the bell curve, don't bother finding other research and statistics that directly oppose the bell curve: the only rhetorical device you'll ever need is how to call someone stupid in a clever and ironic manner.