Supremes Fanning the Firefighter Flames

It may be one of the dumber Supreme Court rationales in quite some time. Writing for the 5-4 majority which ruled in favor of New Haven's white firefighters and effectively against anti-discrimination in employment, Justice Anthony Kennedy said

"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"

Is he kidding? The "fear of litigation" is possibly the strongest motivation there is when any individual or institution decides on a course of action. Why else are the nation's doctors braying, after all these decades, over the malpractice lawsuits that have forced them into P-Y-A medical decisions? Why else have corporations funneled so much money toward politicians to try and achieve "Tort Reform" which really means severely limiting someone's chances of righting some wrong in court. Right you are: It's the "fear of litigation" that Justice Kennedy so cavalierly dismisses.

Kennedy clearly revels in his role as the SCOTUS Swingman, the one who can break the deadlock between the Supremes' two camps. In this particular Pick-Your-Poison case, he sided with the forces who contend that affirmative action has simply replaced discrimination with reverse discrimination. On the losing side were those, among them Ruth Bader Ginsburg, only the second female among the justices, who argue that there needs to be some numerical standard to gauge whether progress toward diversity is being made.

In the middle, is the next high court-wannabee, Sonia Sotomayor. Not only is it widely believed that her Puerto Rican roots contributed to her nomination by President Obama, but she has added to her own controversy with her speeches lauding the superior wisdom of a "wise Latina".

Stirring the pot even more, the majority, in deciding the way it did today, ruled against how she had as a judge on the Appeals Court. So much will be made of the fact her decision was repudiated, at least by her opponents.

Her supporters will push right back by insisting the Sottamayor must be confirmed to fill the void left by her unlikely soulmate David Souter. Whatever other effect it has, the firefighters ruling will certainly add sparks to the Senate hearings scheduled to begin in two weeks.

As for the debate on whether it is a step toward fairness in the workplace the answer is no. It would have been the same if it had gone the other way. Sometimes, we only have a choice between bad answers. In fact, make that almost all the time. The only one who can always count on benefiting are the attorneys, who now have more billable hours they can earn with new litigation.

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Comments

[boredwell]

I'm glad that RIcci has won. He got his day in court, proved his point and will receive his promotion. I feel bad for those firefighters who did not win. In some ways, the court said that the black firefighters did not study hard enough for the exams. Or that they were not smart enough or savvy enough to pass them. Maybe I'm just reading into the psyche behind the court's decision. But I FEEL it. Behind the reverse discrimination there is discrimination. Or something close to it. A plethora of stereotypes about lazy, intelligence, lack of skill. I FEEL that, too. But I feel that Ricci won fair and square.

[sheikwil4]

it coluld be the test for example if the test is geared to a group of people that have total different experiences and expect the same results. for ex asking a group of people to explain blues, one group may answer with navy, light blue, etc. another group may say sad, unhappy, music, both explains blues in their mind and their experiences. so whoses wrong.

[ConstanceReader]

As I understand it, Title VII required that a test for promotion can or must be declared discriminatory if the percentage of minorities who pass the exam is particularly low; this can be interpreted as the test and therefore eligibility for promotion being based on race and not merit or performance. Of all the firefighters who took the test, 19 white firefighters and one Hispanic firefighter scored high enough for promotion; none of the African-American firefighters who took test scored high enough. So New Haven erred on the side of caution, in their mind, by tossing out the exam results because they feared the test was in violation of Title VII and they the would be subject to discrimination lawsuits if they let the test results stand.

[Barticus]

Do you even read what you quote. The Supreme Court is saying that fear of lawsuit does not justify racial discrimination. Are you arguing that it does?

This case is so cut and dry it never should have gotten this far. When the results showed that no Blacks had passed, the town was right to hold up the promotions while the investigated why. After a year without coming up with a shred of evidence that there was bias, the promotion exam should have been reinstated.

[Malkin71]

Can anyone explain how the test, not the results, but the actual test itself was discriminatory? In what manner?

[bobwalters]

Not having seen, read or analyzed the test in question, I can't say much about it, specifically. However, anyone who has any experience with "testing" knows, or should know that such tests can be constructed in such a way as to play to almost any difference one might choose -- such bias can be either deliberate or totally innocent: knowing, consciously intentional or unknowing, unconscious, or any combination thereof. The most effective way to avoid such effects is in the validation procedures, in which even subtle bias effects can be revealed, isolated and removed from the final version of the test.

Tests which assess a defined knowledge base probably are less likely to reflect bias, but even there, differential access to the knowledge base may negatively affect the performance of persons who, because of various forms of discrimination, are afforded less access to the knowledge base and therefore demonstrate less of the acquired knowledge than those whose access has not been so limited. Such differences in performance don't demonstrate lack of knowledge or ability so much as lack of access to the knowledge, which is a different issue.

None of the members of SCOTUS, that I'm aware of, are experts in test construction or validation, and have to rely on the input of such experts, who can themselves exhibit bias.