BREAKING: SCOTUS Reverses Ricci In 5-4 Decision

In a 5-4 decision spilt, led by Justice Anthony Kennedy, SCOTUS reversed the Ricci case outright, preferring a full reversal to what was thought might be a middle ground compromise on liability versus Title VII grounds.

The full opinion is available for download here (PDF). The key language from Kennedy:

Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34.

Let the spin war begin, I suppose.  With the issuance of the much anticipated Ricci decision, the political SCOTUS spin wars will begin anew on the Sotomayor nomination.

Evidence of this?  The Federalist Society has a briefing call set up for 11:30 am ET today.  It was ready to go with Gail Heriot, C. Boyden Gray and Roger Clegg on tap before the SCOTUS opinion on the case ever got released.

Federalist Society holds a discussion via teleconference on how the expected Supreme Court ruling on Ricci v. DeStefano will impact discrimination, employee rights and the Supreme Court nomination of Sonia Sotomayor.

Talking points at the ready and….go! Who cares about the actual opinion!

That sound you hear is journalists with pens at the ready for stenography.  Except?

Anyone who tries to tell you that this is simply a race issue or an easy call doesn’t know jack about labor law. Marcia at Workplace Prof blog did an exceptional layout of the nuances and legal parsings from the SCOTUS oral argument. And, as anyone who reads it can see, it isn’t just black and white. Not by a long shot.

The WaPo, of all places, had a fairly good back and forth on all of the issues in the case, if you are interested in more of the factual background.

In the commentary after Sotomayor’s nomination last week, some have mischaracterized the case and inflated the nominee’s role. It does not involve racial quotas or even a municipal policy of affirmative action, nor does it involve preferences in hiring.

All who took the tests for promotion to lieutenant and captain already worked as firefighters for the city, so it is not a question of hiring less-qualified workers to meet diversity goals.

But the promotion results produced a heated debate in the city, and government lawyers warned the independent civil service board that if it certified the test results, minority firefighters might have a good case for claiming discrimination under Title VII of the Civil Rights Act of 1964. Federal guidelines presume discrimination when a test has such a disparate impact on minorities.

The board split 2 to 2, which meant the exam was not certified.

But somehow the facts of how the entire thing happened in New Haven itself never seem to get into the mix, now do they?

I’ll be reading through the opinion for a bit to see if there’s something to pull out and emphasize. Labor law is not my specialty area, so if it’s yours and you see something that stands out, please let me know.

118 Responses to "BREAKING: SCOTUS Reverses Ricci In 5-4 Decision"
Christy Hardin Smith | Monday June 29, 2009 07:21 am 1

Still reading everything, but Ginsburg’s dissent is really pissed.

foothillsmike | Monday June 29, 2009 07:21 am 2

The rethugs are going to try to use this as a means to denigrate Sotomayor.

NelsonAlgren | Monday June 29, 2009 07:23 am 3

So the Supreme’s smacked down Sotomayor? I am not a lawyer so I don’t know what exactly the reversal means.

NelsonAlgren | Monday June 29, 2009 07:23 am 4

If it wasn’t this, it’d be something else. They’d always find something.

Christy Hardin Smith | Monday June 29, 2009 07:24 am 5
In response to NelsonAlgren @ 3

No, because it wasn’t just Sotomayor’s decision — it was a 2nd circuit one in which other judges concurred. But that’s likely how the media will portray it.

WarOnWarOff | Monday June 29, 2009 07:27 am 6

Triumph of the life experience of pasty white men?

foothillsmike | Monday June 29, 2009 07:27 am 7
In response to NelsonAlgren @ 3

I don’t think it was a smackdown but that rather the rethug justices, who were touted as non activist, took an activist position

redfish | Monday June 29, 2009 07:30 am 8

This is a perfect example of some not understanding the morals and values of the American people, especially when it comes to fairness.

Moral elitists and pundits on the East and West coasts can nuance this all they want with legal mumbo-jumbo and pseudo-intellectual rhetoric on both sides. What the American people know is that a test was given and then when the powers that be decided they didn’t like the results they invalidated it. That’s about as repugnant to American’s sense of right and wrong as it gets.

To say this was not about race and to attempt to pawn it off on indecipherable labor law is disingenuous. It was about the city using race to try and invalidate the test results.

Christy Hardin Smith | Monday June 29, 2009 07:34 am 9
In response to redfish @ 8

Yes, thank you — did you read either Marcia’s analysis or the entire of Kennedy’s opinion and Ginsburg’s blistering dissent? Because I just did — and to boil it solely down to race and spittle is just plain wrong.

Try less bile. We’ll all be the happier for it.

perris | Monday June 29, 2009 07:34 am 10

I personally thinkg we need to begin discrediting the federalist society’

“if the federalist society says it then it has to be bad for america”

they are the antithesis of democracy

Adie | Monday June 29, 2009 07:35 am 11


foothillsmike | Monday June 29, 2009 07:35 am 12
In response to Christy Hardin Smith @ 9

Thank you

Scarecrow | Monday June 29, 2009 07:38 am 13

our push back is simple: 4 justices disagreed with the radical conservatives on the court. Sotomayor would replace one of those 4 justices. So her views are not out of step with a solid view of the law.

All this shows is that that the Supreme Court will continue to move in a radical right wing direction until one of the 5 radicals (or 4 radicals and one dupe) is replaced, and that is something everyone should hope will happen at the earliest date.

Christy Hardin Smith | Monday June 29, 2009 07:38 am 14
In response to Christy Hardin Smith @ 9

For example, from Ginsburg’s dissent based on her reading of the facts, which clearly differs from Kennedy’s read on things:

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference
to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. 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.1

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire de-
partment in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971),
which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.

SaltinWound | Monday June 29, 2009 07:39 am 15

This seems to me like a weak distinction:

“All who took the tests for promotion to lieutenant and captain already worked as firefighters for the city, so it is not a question of hiring less-qualified workers to meet diversity goals.”

I understand it’s not a question of hiring less qualified workers. It’s a case of blocking the promotion of more qualified workers. Is that the important nuance people are missing here? That it’s not about hiring, it’s about promotion?

Adie | Monday June 29, 2009 07:40 am 16
In response to Christy Hardin Smith @ 9

It’s times like these, I appreciate your meaningful, measured, careful research and discourse more than ever.

The red hair doesn’t signal shyness either. What’s not to love?! ;->

Christy Hardin Smith | Monday June 29, 2009 07:41 am 17
In response to Scarecrow @ 13

Honestly, this is one of the areas of the law where there is always a close call and a lot of friction. When you are balancing out public policy and people’s livelihoods in the balance, it’s never easy — nor should it be.

But it’s not simplistic, cardboard cutout charicatures either. And we should all try not to be the sort of people who fall for them.

puppethead | Monday June 29, 2009 07:44 am 18

Good to know, as a white male, that I can get favored treatment through biased practices and then keep the rewards of that no matter what. John Roberts is a mighty champion of the oppressed privileged class.

redfish | Monday June 29, 2009 07:45 am 19
In response to Christy Hardin Smith @ 9

It’s a fairness issue. Why should the city give a test only to have them invalidate it because they didn’t like the results — this was to the detriment of those who passed the test and qualified for promotion. It’s that simple.

redfish | Monday June 29, 2009 07:46 am 20
In response to puppethead @ 18

John Roberts is a horrific justice – but please tell me what “favored treatment through biased practices ” the firefighters who passed the test got.

Christy Hardin Smith | Monday June 29, 2009 07:47 am 21
In response to SaltinWound @ 15

It’s funny, because I was just thinking that Sotomayor was accused by a lot on the right of a race-based decision process in this when it seemed to me that the panel decision was an exercise in trying to not apply race in a test that is clearly a racial one on a lot of levels — something I found really illogical as I was reading through a lot of material on Ricci trying to get myself up to speed on labor law, frankly.

But reading through Kennedy’s majority opinion, I couldn’t help but feel like his analysis was designed to be a race-based solution — just geared toward the other end of “reverse discrimination” as it were, rather than what we usually see as the other way around. How to reconcile all of that with the mix of liability, Title VII and the usual analysis, though? I’m not honestly certain because it doesn’t seem to jibe with what I thought I knew on the law on this area.

Which of course makes all of this ripe for political framing and manipulation, doesn’t it?

Christy Hardin Smith | Monday June 29, 2009 07:48 am 22
In response to redfish @ 19

It is a fairness issue. The question is, though, to whom is the fairness distributed? Because the way I see it, both sides have a pretty big argument to make — with differing reasons for wanting their own outcomes. Which, last I checked, is the whole point of litigating something like this in the first place.

redfish | Monday June 29, 2009 07:53 am 23

Since the test is public knowledge please show me what part of the test is discriminatory.

“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”.

What questions were unfairly asked that minorities were at a disadvantage answering?

Peterr | Monday June 29, 2009 07:55 am 24

Christy, if the decision today forces the city of New Haven to accept the test results because “fear of litigation alone cannot justify” setting aside the test results, then does this still allow the minority firefighters to file a lawsuit challenging the test and thus the promotions that are based on the test?

Christy Hardin Smith | Monday June 29, 2009 07:56 am 25

Alito manages to get what feels like a dig in at Sotomayor in his concurrance — see what you all think:

“But ’sympathy’ is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law . . . And that is what, until today’s decision, has been denied them.”

puppethead | Monday June 29, 2009 07:57 am 26
In response to redfish @ 20

They took a test that has been proven to favor white people. In other words, the bar was much lower for them than non-whites. Imagine being on a game show where you get asked questions like, “what’s your favorite color?” while the others have questions like, “what is the airspeed of an unladen swallow?” That’s not “passing” a fair test, it’s being given an advantage over the competition.

Bottom line, the white firefighters squawked about this because they didn’t want to face taking the test again. Seems like a dubious response by someone who should be qualified for the position, doesn’t it?

(Yes, I know the questions weren’t different, it’s to illustrate how cultural bias works.)

Christy Hardin Smith | Monday June 29, 2009 07:59 am 27
In response to Peterr @ 24

I don’t know, Peterr — as I said, labor law isn’t my speciality area, wasn’t part of my practice when I was litigating by choice: labor cases annoy the crap out of me. *g*

But maybe we’ve got a labor lawyer in the audience who can say off the top of their head. I’ll be back-reading through cited precedent in the Ricci case just to wrap my own brain around where the various factions stand and why.

jayt | Monday June 29, 2009 08:00 am 28

It is a fairness issue.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined.

Not to be overly argumentative, but since when do Roberts, Alito, Scalia and Thomas come down on the side of minorities?

Seems like a well-played political gambit to me.

redfish | Monday June 29, 2009 08:01 am 29
In response to puppethead @ 26

If what you say is true, please show me what part of the test is discriminatory. What questions were unfairly asked that minorities were at a disadvantage answering?

Christy Hardin Smith | Monday June 29, 2009 08:01 am 30
In response to redfish @ 23

Dude, is there some reason you’ve decided to take on the hostile tone with me today? Because I’m just trying to tell you what I know. As I said above, I’m not a labor law specialist, so I’m boning up on this along with everyone else.

If you want to grill someone on ricci, you are going to have to find someone else to ask. Because you know what I know at this point.

oldgold | Monday June 29, 2009 08:02 am 31

The irony here is that the so called conservative wing of the Court is engaging in judicial activism by second guessing a decision made by elected officials.

Christy Hardin Smith | Monday June 29, 2009 08:03 am 32

And again, I thought Marcia’s analysis on the back and forth at Workplace Prof blog was really well done and worth a thorough read, which is why I linked it up above.

SaltinWound | Monday June 29, 2009 08:03 am 33
In response to puppethead @ 26

This makes no sense to me. I understand how results can be skewed on an SAT or IQ test, where people have different frames of reference. But this was about firefighting and everyone was taking the same test. You’re making it sound like different tests were given to whites and minorities. Like redfish, I’d love to hear one example of an unfair question on the test.

barbara | Monday June 29, 2009 08:04 am 34

Cameo appearance w/total OT: MN governor Tim Pawlenty has said he will sign the election certificate that reflects the MNSC decision which, as we all know, is due any day now. Over and out.

SaltinWound | Monday June 29, 2009 08:05 am 35

Unlike redfish, I would not like to take a hostile tone with Christy.

redfish | Monday June 29, 2009 08:05 am 36

I have not been hostile in tone at all, I have asked questions because I am interested in the post and find this fairness issue to be disturbing. You answered me which I appreciated and we were having a fairly thoughtful dialogue, so I thought. If you want to make this about me — because I don’t agree with you so be it.

Christy Hardin Smith | Monday June 29, 2009 08:05 am 37
In response to oldgold @ 31

It really is ironic, isn’t it? They did that last week as well with the Horne v. Flores case, wherein the local school baords filed amicus briefs against what was supposedly being argued on their behalf. I could not figure out whose interest was being actually served in that convoluted set of mishmash, honestly.

Christy Hardin Smith | Monday June 29, 2009 08:06 am 38
In response to barbara @ 34

Oh please, oh please, oh please let that finally end.

redfish | Monday June 29, 2009 08:07 am 39
In response to SaltinWound @ 35

There was no hostile tone. I am just questioning the fairness in invalidating tests when the results are not to some’s liking. That’s all. I would like someone to show me what quations were on that test that were not fair to minorities. If so, I will say I was wrong.

BargainCountertenor | Monday June 29, 2009 08:07 am 40


yachts:regatta:: ______:charriada

a. cleats
b. automobiles
c. motorcycles
d. horses
e. none of the above

redfish | Monday June 29, 2009 08:10 am 41
In response to BargainCountertenor @ 40

Source please.

BargainCountertenor | Monday June 29, 2009 08:10 am 42
In response to redfish @ 29

There was expert testimony that the exam was culturally biased, wasn’t there? In order to find that sort of thing we’d need an item construction expert.

I’m a statistician, I would imagine that I could take the results (which are not public information that I’m aware of) and demographic identification and tell you which items are biased. But I can’t guarantee that I can tell you why they are biased.

foothillsmike | Monday June 29, 2009 08:10 am 43
In response to puppethead @ 26

I think that what the supreme court said was that the city did not demonstrate what the discrimination was in the test but rather threw out the test based on a fear that minority applicants would sue. If the city had therefore done the work to show how the test discriminated then there very well may have been a different outcome. This is, as I see it, something new that Sotomayor did not have in her toolkit when she was considering the case.

Christy Hardin Smith | Monday June 29, 2009 08:15 am 44
In response to redfish @ 36

It’s tough to tell tone in writing, when you don’t have actual facial features and body language to read. I likely just misread yours, that’s all. If so, sorry — it was reading a little hostile and cross-examiny to me. And I just don’t have answers beyond what I’ve already written at this point.

I think I’m still just tired from the last few months of excess stuff here, and I’m likely just overreading things as a result, ya know?

BargainCountertenor | Monday June 29, 2009 08:15 am 45
In response to SaltinWound @ 33

It depends on what the test items were. If they put a bunch of BS so-called ‘general knowledge’ items in there (see my 38 for an example) the thing could easily be culturally biased.

redfish | Monday June 29, 2009 08:15 am 46
In response to BargainCountertenor @ 42

Experts testified on both sides. The court ruled that New Haven’s fear of a lawsuit was not sufficient reason to punish the firefighters who scored highest on the tests. Where is the emotional anger at how unfair this is to those hard working fireman who studied their butts off and wanted to make a better salary to support their families?

katymine | Monday June 29, 2009 08:16 am 47
In response to puppethead @ 26

Like questions on the college tests……I live in Arizona …..

What side of a tree does the moss grow? In Oregon all over the tree…. Here in AZ…. it grows on the branches and called spanish moss….

turned off the TV…. they were saying that Sotomayor alone made this decision, even Dan Rather did not mention that it was a panel of appeal judges…. right now I would rather listen to Billy Mays scream at me….

Hi Christy…. doing ok and having weekly IV Chemo…… last brain MRI showed tumor shinkage and a lot less brain swelling …. Next mri 8/13…. will see if it continues

Christy Hardin Smith | Monday June 29, 2009 08:16 am 48
In response to foothillsmike @ 43

It’s certainly something on which reasonable minds can differ — because Kennedy’s read, Alito’s read in his concurrence and Ginsburg’s in her dissent all pick up completely different factual bases for their arguments.

Which makes me wonder if a remand might have better served the actual case, frankly. But it’s tough to second guess at this late stage in any litigation, frankly.

BargainCountertenor | Monday June 29, 2009 08:17 am 49


Is this yet another issue of tough cases making for bad law?

Christy Hardin Smith | Monday June 29, 2009 08:17 am 50
In response to katymine @ 47

Ooooh — tumor shrinkage is awesome news. Yay for you!!!

redfish | Monday June 29, 2009 08:17 am 51

I hear ‘ya and I meant no disrespect. I enjoy your blog and your intellect very much even though I often disagree with what is said. These are passionate and important issues to us all.

timr | Monday June 29, 2009 08:19 am 52

and the MSM continues its decline because the reporters are very lazy and would much rather report on a made up controversy and become simply the mouthpiece of the the rethug party rather than actually reporting. God save us from the millionaire villagers.faux, according to something I read over the weekend, won a court case in Fl that says that a “news” organization can lie if it wants to. No need to actually report on the news. Hmmm. I guess that faux can proudly take its place right next to “News of the World”
Actually, the entire MSM can take its place right next to NOTW and faux. I have been doing some reading about the time period from 1890 to 1920, back when the newspapers were more prone to report vicious lies about anyone in public life. I thought we had moved beyond that, but the military mission into Somolia proved me wrong. Yes, that was a totally MSM driven invasion, absolutely no reason for the US to be there. A real clusterf**k. Just like the Spanish American War, totally driven by the popular press. The headlines read “Remember the Maine” and we won, despite a really pathetic military.

BargainCountertenor | Monday June 29, 2009 08:21 am 53

That’s an example of a culturally biased so-called ‘common knowledge’ question. Can you answer it?

When experts testify on both sides of an issue, someone has to sift through the BS and decide who to believe. I’m not an item-construction expert and I’m not entitled to a professional opinion in the matter. If you aren’t an item-construction (or at the very least, a test construction expert) you aren’t entitled to a professional opinion either.

BargainCountertenor | Monday June 29, 2009 08:25 am 54

By the way, katy gave another one. Which side of a tree does moss grow on? Around here (southern New Mexico) it doesn’t grow anywhere on trees.

Or, how about another: which of the following is good to eat: hamburger, flower, stone, brick (that’s from WISC so-called IQ test, it actually uses pictures.) If you’re a gorilla, trying hard, the answer is the flower. But that’s wrong according to the test creators. By the way, even with wrong answers like that one, the gorilla still scored an IQ of 88.

1970cs | Monday June 29, 2009 08:27 am 55

“But Ginsburg said the court should have assessed “the starkly disparate results” of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.” NYT

Ginsburg is arguing that inequality is taking place when no evidence of it has been presented. How does her opinion not in violation of the NOFEAR Act?

BargainCountertenor | Monday June 29, 2009 08:28 am 56
In response to katymine @ 47

That’s great news!

foothillsmike | Monday June 29, 2009 08:34 am 57

Bernie Madoff gets 150 years.

redfish | Monday June 29, 2009 08:35 am 58
In response to BargainCountertenor @ 53

I most certainly am entitled to an opinion. I am still waiting for a question from the actual test in New Haven. I am curious as to what question minorities are “not capable of answering” according to some.

Elliott | Monday June 29, 2009 08:36 am 59
In response to foothillsmike @ 57

and he earned every one

Pansy | Monday June 29, 2009 08:43 am 60

Kennedy’s holding -

we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII

essentially creates a new standard for Title VII claims. I’d be impressed by a persuasive argument that the Second Circuit should have – and properly could have – anticipated a change in the legal standard. I’ve done a fair amount of employment work and have not come across the “strong basis in evidence” standard at all. I learned Croson in law school but had never seen it applied in my practice. An extension of the Croson plurality standard to all Title VII claims (which Kennedy appears to be holding) is, I believe, a pretty sweeping change to the standard of proof.

I think – it’s (thankfully) been a while since I’ve had an employment practice, but that’s my take on it.

oldgold | Monday June 29, 2009 08:49 am 61
In response to Elliott @ 59

and he earned deserved every one

I just don’t like the word “earned’ associated with Madoff.

BargainCountertenor | Monday June 29, 2009 08:50 am 62
In response to redfish @ 58

You’re entitled to an opinion. Opinions are like assholes, everyone gets one.

I said you’re not entitled to a professional opinion. And unless you could be admitted into Court as an expert in test construction, you aren’t entitled to a professional opinion.

redfish | Monday June 29, 2009 08:57 am 63

Christy is this comment directed at me by “BargainCountertenor” what you meant by hostile.

“You’re entitled to an opinion. Opinions are like assholes, everyone gets one”.

Twain | Monday June 29, 2009 08:58 am 64

Aren’t the questions about firefighting? They are all trained as firefighters so what are the questions that African-Americans can’t answer? I’m not judging either way – I simply would like to see the questions. If it was racism then it should be stopped right now.

redfish | Monday June 29, 2009 09:00 am 65
In response to BargainCountertenor @ 62

Your vulgarity and language says all that needs to be said about your opinion. I am still waiting for your example of an actual test question. I’m curious what it is that is so out there that it renders minorities less capable. I don’t think that way — I’m sorry you do.

Elliott | Monday June 29, 2009 09:03 am 66
In response to redfish @ 51

Redfish, as a self described “mainstream traditional liberal progressive democrat,” perhaps you could share where you agree with the views expressed here.

1970cs | Monday June 29, 2009 09:07 am 67
In response to Twain @ 64

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. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.……html?_r=1

Achieving quotas is against the law, whatever color, gender, race, or religion they may be. I’m still trying to understand what ‘women and minorities are encouraged to apply’ means.

katymine | Monday June 29, 2009 09:11 am 68

I may be wrong but I had heard several months ago when they were reviewing this case (Toobin and others) that the actual test was not available for viewing as it was under seal. It never was evaluated for the discrimination aspects, it was that one, learning disabled white firefighter passed the test and no one else. Now that guy worked his ass off and studied a lot to pass.

A test so hard that only one passed it sure speaks a lot.

BargainCountertenor | Monday June 29, 2009 09:13 am 69
In response to Twain @ 64

I haven’t seen the test, and I haven’t found it online, despite redfish’s protestations that the exam is available.

I’m not that hopped up to see the test, either. While I could identify the biased items if I had the individual exam responses and demographic identifiers, I couldn’t tell you why a particular item is biased.

I suspect that the test had a lot of fire-fighting specific questions (which are all fair game in my book) and a section on ‘leadership’ theory. If it did, that’s where I’d look for the cultural biases, and wouldn’t be surprised to find them.

gaber205 | Monday June 29, 2009 09:14 am 70
In response to Peterr @ 24


MrWhy | Monday June 29, 2009 09:14 am 71
In response to SaltinWound @ 33

Q1: Given the data in table 1, which of mean, median, mode matches 42?

Q2: Who amongst the following argued in favour of appeasement of Nazi Germany in the years 1937-1939? Winston Churchill, Neville Chamberlain, Bertrand Russell, Clement Atlee.

MrWhy | Monday June 29, 2009 09:18 am 72
In response to MrWhy @ 71

These aren’t part of the test, just examples of questions where, there is no inherent bias in the questions, they’re strictly fact based.

BargainCountertenor | Monday June 29, 2009 09:19 am 73


I’ve given you several examples of biased test questions of the form that appear on widely used (and available) tests. I very specifically stated that you aren’t entitled to a professional opinion in the matter (nor am I), and you deliberately chose to misread me as saying you’re not entitled to an opinion.

Now, if you do have professional expertise in the area, and you are entitled to a professional opinion, I’ll apologize. But until you can show us where to find the exam itself…

DavisXMachina | Monday June 29, 2009 09:21 am 74

To say this was not about race and to attempt to pawn it off on indecipherable labor law is disingenuous. It was about the city using race to try and invalidate the test results.

Let me see if I’ve thought this through. The disparate outcome on the exam was, in the judgment of the city, and given the law at the time, a red flag, prima facie grounds for a legal challenge — one they were trying for whatever reason to avoid.

In a manner of speaking, the test results invalidated themselves, because of the disparate outcome.

It looks to me like the city read Gregg v. Duke Power:

Under the Act, [Title VII] practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.

and punted.

Cowardice or a lack of expertise in elected bodies? I’m shocked.

BargainCountertenor | Monday June 29, 2009 09:21 am 75

Mr Why,

I’m a Redfish Republican, and I wasn’t born in 1937. Do I need to know those things?

gaber205 | Monday June 29, 2009 09:21 am 76
In response to redfish @ 58

The way I understand it from reading the record is that there was an extremely high cost associated with the test preparation materials (over $500) and a lack of availability (they were only available in a few specific places and the materials were back-ordered in those places for several months). Test-takers who had access to the materials (those with family members in the firefighting ranks in NH) were able to study for months before the other test-takers. Most (if not all) of the minority test-takers were first generation firefighters (not a huge shock given the history of racial discrimination in hiring in firefighting).

Also, the test had a 60/40 weighting between the written and the oral portions of the exam – Bridgeport (the largest city in CT and about 20 minutes south of New Haven) had similar issue in the past and they were alleviated by weighting the written part of the exam less heavily with respect to the oral.

It’s not always the text of the question that can lead to disparate impact results…

katymine | Monday June 29, 2009 09:25 am 77
In response to BargainCountertenor @ 73

I still think the test is under seal in New Haven after the cities decision. They planned to throw out the test and rewrite it with the idea to evaluate the questions. it is what I get for watching too much TV…. but I know I saw a segment on one the morning shows with the firefighter that passed the test.

MrWhy | Monday June 29, 2009 09:37 am 78
In response to BargainCountertenor @ 75

Q1 is statistics, and captains and lieutenants might well be expected to be versed in statistics at this level.

Q2 is relevant to the start of WWII, and I expect this is part of the curriculum of high school history. It is British centric rather than USA centric. Perhaps I should have asked, who among George W Bush, John Kerry, Al Gore, Bill Clinton, served during the Vietnam War?

MrWhy | Monday June 29, 2009 09:38 am 79
In response to MrWhy @ 78

Add Dick Cheney to the list.

james | Monday June 29, 2009 10:00 am 80
In response to Scarecrow @ 13

This is exactly what people have to start doing, identifying the current GOP apparatus and its minions as radicals. Let all those who listen to the vitriol on FOX and who listen to Rushbo understand that these people are NOT speaking for any silent majority but that they are acting as radicals, completely changing this country in ways that may never be corrected.

It’s ironic that Radical Republicans after the Civil War were the ones who wanted the old south dismantled and the obstructionists sided with Johnson to dismantle Reconstruction.

Just point to the ways that Bush et al. expanded the executive through EOs and by outright refusal to act legally in the areas of FISA, fourth amendment protections, hell first amendment protections, eighth amendment, etc., and show that Obama isn’t too quick to nullify what his predecessor implemented to indicate the dangers that these people pose to our country.

jerry | Monday June 29, 2009 10:02 am 81
In response to puppethead @ 26

“They took a test that has been proven to favor white people.”

That’s not true. It’s not true scientifically (sample size was too small and the test takers were not chosen randomly, and there was no repetition of the experiment) It wasn’t true by design, they explicitly chose a process (choice of company designing the test, goals in designing the test, review process for the test) to design the test to be racially fair.

It’s true only in the legal sense that Title VII assumes any racial impact is wrong, regardless of intention, regardless of any evidence other than (apparently) strictly numbers.

“”Disparate impact” is a methodology for establishing that an employer has engaged in discrimination against a specific group of employees or job applicants of the same race, ethnicity, religion or sex that does not require evidence that the employer intended to discriminate.”

There is no scientific reason to believe that in Ricci, this one time use test, never used again, not even disclosed (IIRC) is actually an unfair exam.

Hugh | Monday June 29, 2009 10:07 am 82

The joke here is that New Haven took the action it did out of fear of facing litigation under Title VII. Now SCOTUS is saying that’s bogus but it rationalizes its reversal of Ricci on the the same grounds, that if New Haven does not re-instate the test results it could face litigation under the disparate treatment grounds SCOTUS just legitimized.

So apparently fear of litigation is only a rationale when SCOTUS says it is.

As for Sotomayor, this decision means nothing. After all 4 Supreme Court justices did not agree with it.

jerry | Monday June 29, 2009 10:08 am 83
In response to BargainCountertenor @ 53

Actually, I was able to guess correctly what the answer was, and I don’t sail boats or ride horses,

That said, my understanding is that the test was apparently designed by a company chosen because of experience is designing fair tests, it was reviewed by minority fire officials to make sure it was fair, relevant to the job, and not culturally biased, and the testimony that said otherwise came from a competitor who provided their opinion as opposed to any measurement of the test itself. And again, IIRC, the actual test has never been released.

We don’t know if the test was biased or not, and I admit I haven’t followed this case closely or close enough to know what Ginsburg was referring to when she discussed how other cities have better tests, or how she measured that.

Hugh | Monday June 29, 2009 10:10 am 84

I should point out too that the radical conservatives on the Supreme Court, as the Gross case with its criticisms of Price Waterhouse showed, has got Title VII in its sights and will take shots at it every chance it gets.

redfish | Monday June 29, 2009 10:19 am 85
In response to Elliott @ 66


I believe in ending terrorism not emboldening terrorists, about fighting disease and poverty worldwide, about rejecting torture, about affordable energy costs, about fighting global warming and developing sensible alternative energy sources, about quality education for our children, about tax and election reform, about keeping religion out of government and our schools, about caring for our senior citizens, about affordable prescription drugs, about providing quality health care for all, about creating good jobs, about protecting social security and medicaid, about sexual equality and homosexual rights, about not enabling corrupt and oppressive governments, about a woman’s right to chose and a fair immigration policy, about civil rights for all, about safeguarding the environment and protecting wildlife and about not opting to stimulate corporate profits and malfeasance at the expense of the working class of this country.

What I am NOT for is extreme positions that lessen the chances of achieving the above.

jerry | Monday June 29, 2009 10:21 am 86
In response to katymine @ 68

My understanding is lots of people passed, including African American test takers, however there were only seven openings at the time and the specific African American firefighters who took the test were not in the top seven.

From the wiki:

In November and December 2003, the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant and Captain.[3] The City’s Department of Human Resources issued an RFP for these examinations, as a result of which I/O Solutions (”IOS”) designed the examinations.[4] Under the contract between the City and the New Haven firefighters’ union, the written exam result counted for 60% of an applicant’s score and the oral exam for 40%. Those with a total score above 70% on the exam would pass.

For the 118 firemen who took the exams, the pass rate for black candidates was approximately half that of the corresponding rate for white candidates:[5]

* The passage rate for the Captain exam was: 16 (64%) of the 25 whites; 3 (38%) of the 8 blacks; 3 (38%) of the 8 Hispanics[6]. The top 9 scorers included 7 whites and 2 Hispanics; given that there were 7 Captain vacancies when the tests were administered, and that the “Rule of Three” in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared that no blacks and at most two Hispanics would be eligible for promotion.
* The passage rate for the Lieutenant exam was: 25 (58%) of the 43 whites; 6 (32%) of the 19 blacks; 3 (20%) of the 15 Hispanics. All the top 10 scorers were white; given that there were 8 vacancies, under the “Rule of Three” it appeared that no blacks or Hispanics would be eligible for promotion.

jerry | Monday June 29, 2009 10:30 am 87
In response to MrWhy @ 72

I believe being strictly fact based is not sufficient for designing the test. I believe the law says the questions must also be relevant to the job.

So the questions on the test have to be relevant to being a firefighting captain or lieutenant, which your examples are not. I suspect culturally biased questions that are relevant can be created, intentionally or unintentionally, and presumably the reason IOS was chosen to design the test was their experience in designing relevant, not culturally biased tests.

From Kennedy’s Opinion, this was the process:

” After reviewing bids from various consultants, the City hired Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates.

With the job-analysis information in hand, IOS developed the written examinations to measure the candidates’ job-related knowledge. For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. Each test had 100 questions, as required by CSB rules, and was written below a 10th-grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.

IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job-analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.

IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria.

Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Ibid. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics. Ibid.


The City’s contract with IOS contemplated that, after the examinations, IOS would prepare a technical report that described the examination processes and methodologies and analyzed the results. But in January 2004, rather than requesting the technical report, City officials, including the City’s counsel, Thomas Ude, convened a meeting with IOS Vice President Chad Legel. (Legel was the leader of the IOS team that developed and administered the tests.) Based on the test results, the City officials expressed concern that the tests had discriminated against minority candidates. Legel defended the examinations’ validity, stating that any numerical disparity between white and minority candidates was likely due to various external factors and was in line with results of the Department’s previous promotional examinations.”

Elliott | Monday June 29, 2009 10:30 am 88
In response to redfish @ 85

What have you done lately to push any of those issues?

redfish | Monday June 29, 2009 10:39 am 89

I do what every good citizen does, I vote, I call my representatives, I talk to friends and family, I participate.

I get very angry here because I believe in what I wrote above strongly and I see this new left extremism, sorry, that’s what I think it is, as being potentially disastrous in the end for democrats. I would much rather get a half a glass of water than no water at all.

Elliott | Monday June 29, 2009 10:49 am 90
In response to redfish @ 89

So you support the Blue Dogs?

SouthernDragon | Monday June 29, 2009 10:51 am 91
In response to redfish @ 89

So by coming here and labeling us extremists, among other things, you’re going to straighten us out and we’ll see the light as you see it?

redfish | Monday June 29, 2009 10:59 am 92

I support a pragmatic and realistic approach and maintaining our new Democratic majority in congress and the white house.I recognize that Democrats from conservative states represent a different constituency than Maxine Waters does. Pushing Berkley’s values on Louisiana is not a winning proposition. I would rather have Blue Dogs in a broad Democratic coalition and not get everything I might want — then have the much more conservative GOP in power.

redfish | Monday June 29, 2009 11:02 am 93

No, I am expressing my point-of-view and hope that I will make at least one person reconsider the dangerous perspective they espouse. If not now, at least what I say will sit in the recesses of their mind and possible make a difference at some point in the future.

I believe the left attacking Obama and other Democrats is wrong and will only contribute to more years of reactionary rule in this country I love.

Elliott | Monday June 29, 2009 11:11 am 94
In response to redfish @ 92

so….would you agree those are goals we should strive to achieve?
and if not this year, then soon?
and did MLK or Ghandi reach their goals by compromising?
or by reaching for the stars and accepting it was gonna be a long haul to get there?

redfish | Monday June 29, 2009 11:35 am 95

I think generally accepted progressive goals are the ones I personally subscribe to, for the most part, not always. That having been said, this is not the way to go about achieving them in my opinion. Ghandi and MLK were inspirational leaders that persuaded with eloquence and charity – I see no inspirational leaders on the extreme left today. Not one.

Elliott | Monday June 29, 2009 11:50 am 96
In response to redfish @ 95

Today’s Blue Dogs were the Dem establishment of the late 60’s.

Was it the Democratic establishment that turned public opinion against the Viet Nam war….or all those DFH’s in the streets?

redfish | Monday June 29, 2009 12:02 pm 97
In response to Elliott @ 96

Totally different times, totally different sensibilities. The reality you don’t seem to want to face is that the far-left is a minority voting block and minorities do not and should not hold sway in a representative democracy. The recent Gallup poll shows that 75% of Americans describe themselves as conservative or moderate and 21% liberal. Accordingly, what is surprising about Mary Landriex representing her constituents in Louisiana according to a moderate to conservative philosophy? Doesn’t mean I agree, but I would rather have her in congress than the alternative.

dakine01 | Monday June 29, 2009 12:09 pm 98
In response to redfish @ 97

Can’t you agree that there needs to be a vocal group of people around to remind the Blue Dogs and the more conservative types that they have an obligation to live up to the professed ideals of both the party and the country as a whole?

As has been pointed out previously, the polling has folks saying they are conservative, moderate, or liberal is a little fallacious in that when actual positions on issues, folks tend to come down on the issue side espoused by the liberals (especially when NOT presented as “this is a liberal or conservative position”)

redfish | Monday June 29, 2009 12:20 pm 99
In response to dakine01 @ 98

Yes I agree! And you should in my opinion do so without threatening them because you don’t like the way they vote. Democrats should not threaten other Democrats. What you say are “professional ideals” may not be theirs or their constituents.

dakine01 | Monday June 29, 2009 12:25 pm 100
In response to redfish @ 99

So then, how do you suggest that Democrats who refuse to vote in line with the professed ideals of the party be treated? How would you bring them around to the Democratic party ideal without making their votes an issue?

In other words, why should we support folks who claim to be Democrats yet vote every time against the Democratic Party? Wouldn’t we be better off if those politicians went ahead and became the Republicans that they vote with?

redfish | Monday June 29, 2009 12:57 pm 101
In response to dakine01 @ 100


dakine01 | Monday June 29, 2009 01:05 pm 102
In response to redfish @ 101

So you have no problem with them being primaried from the Left and having them called out for their votes then?

But then if they win, we have to swallow and accept that even though they never vote in Congress as a Democrat, we can’t call them on it at any time other than in a primary period?

jerry | Monday June 29, 2009 01:11 pm 103
In response to dakine01 @ 102

I am not in 100% agreement with redfish or in 100% disagreement with you, but if the local Democratic Party considered them to be Democrats, and their constituency considered themselves to be democrats and they won the election, who are you to not call them Democrats?

Perhaps the problem should also be worked through the DNC and various local Democratic parties.

However, Joe Lieberman who left the Party should not be allowed to call himself any sort of Democrat. Copyright, Trademark Protection, all that and more should be applied against him.

dakine01 | Monday June 29, 2009 01:18 pm 104
In response to jerry @ 103

I tend to call them not Democrats when they consistently vote against the Democratic Party.

There are a lot of folks here who have worked within the Democratic Party establishment. What you also have to realize is many of these folks who have been elected as “Democrats” did so after switching parties as it is easier to take out an incumbent from the opposition party than through a primary.

For example, Snarlin’ Arlen now claims to once again be a Democrat because he was vulnerable in a Republican primary from the right. He hasn’t really voted as a Democrat and I don’t think he truly is one. But he has the D after his name now.

BargainCountertenor | Monday June 29, 2009 01:31 pm 105
In response to MrWhy @ 78


That was fairly lame attempt at humor. My wife and I watched a two-week old Real Time, the one where Begala slapped Megan McCain down when she said, “I wasn’t born when that happened. Why should I… [be expected to know it]”. At the ellipses Begala jumped in and said, “I wasn’t born when the French Revolution occurred, but I still know what happened then.”

jerry | Monday June 29, 2009 01:31 pm 106
In response to dakine01 @ 104

I dislike Spector, but he’s not my Senator. Since he hasn’t been elected yet as a Democrat, I don’t have a real problem with your (or my) calling him not a Democrat.

But, he has convinced the Senate Democrats to call him a Democrat. He has convinced President Obama to call him a Democrat. If he convinces his local party to let him run as a Democrat, if he convinces his constituents to vote him in as a Democrat, and if he wins as a Democrat, well maybe the problem isn’t with Arlen Spector, maybe the problem is with you and what you want from the Democrats and what can be achieved in our system.

Do what you can to support Instant Runoff Voting and Proportional Representation and then maybe we can get the party and representatives we want…..

BargainCountertenor | Monday June 29, 2009 01:39 pm 107
In response to jerry @ 83

The point is that you were guessing, you didn’t know. If you’re guessing, you’re going to guess wrong, too.

As far as the New Haven mess goes, if you’re right about their having a civil service requirement to hire from the top 3 on the list, it sounds to me like they need to modify their rule.

BargainCountertenor | Monday June 29, 2009 01:41 pm 108

Re: STV systems (a/k/a Instant Runoff), from your keyboard to Congress’ ears.

esseff44 | Monday June 29, 2009 03:44 pm 109
In response to NelsonAlgren @ 3

No, they smacked down the city officials for claiming something that the evidence did not support. The SCOTUS went back to the record which was overlooked or ignored by the district judge and the 2nd Circuit panel. It was not ignored by the Second Circuit judges who felt a need for clearer guidelines when the usual plaintiff and defendant positions were reversed.

esseff44 | Monday June 29, 2009 03:54 pm 110
In response to SaltinWound @ 15

One of the requirements for the promotion was a certian number of years in a lower position. We can assume that everyone who took the test met those minimum qualifications. In hiring, you can’t make that assumption. In that respect, it is different.

KayInMaine | Monday June 29, 2009 04:00 pm 111

Just remember! Only whites pass tests and we are fabulous on the oral part of any test! All minorities are not! /s

The slippery slope has begun! Lots of victimized whites will be lining up now to sue. And we thought tort cases were extreme in numbers and purpose! Nope. Not anymore!

KayInMaine | Monday June 29, 2009 04:03 pm 112
In response to redfish @ 95

You are such a bullshit artist. Go back to your cave where you belong (which is under the front porch of the RNC in case you forgot). Thanks.

esseff44 | Monday June 29, 2009 04:08 pm 113

I think the ’sympathy’ remark was a dig at Ginsberg’s remarks in her dissent where she sympathizes but argues against them.

Christy Hardin Smith | Monday June 29, 2009 04:48 pm 114

Jeebus, I walk away from the blog for a while to spend time with The Peanut and I miss a whole thing in the thread.

Two things, gang: (1) Let’s try to play nice with one another, shall we? Even when I’m not around, I’d appreciate keeping the name-calling and whatnot to a minimum so I don’t have to come back in and do clean-up in my spare time.

(2) This case appears to have promulgated an entirely new standard, based on all of my reading on it this afternoon. Which means that the 2nd Cir. opinion may very well have closely followed it’s prior precedent, and that a new standard as enunciated by Kennedy’s majority opinion will make that precedent null and void going forward, but it doesn’t necessarily mean it was incorrectly decided previously.

It’s a subtle difference, but that’s how laws get changed through the years, so…it just remains to be seen what this means overall in the bigger labor picture. And I’m going to have to leave it to labor experts to hash that out, I’m afraid.

redfish | Monday June 29, 2009 04:56 pm 115
In response to KayInMaine @ 112

I appreciate your intellect and class. Well done.

redfish | Monday June 29, 2009 04:58 pm 116

I think we have rehashed the good democrat bad democrat thing enough. Suffice it to say you should give Obama a chance. Five months does not a Presidency make, one should be patient. MLK was patient on civil rights. Obama deserves that same respect.

BargainCountertenor | Monday June 29, 2009 09:49 pm 117

I’m sorry for dirtying up your thread. I won’t feed the trolls anymore.

myiq2xu | Tuesday June 30, 2009 03:01 am 118

Some people don’t let ignorance get in the way of expressing their opinions.

Sorry but the comments are closed on this post