Disparate Lives: Why the Ricci Decision Won't Affect Racial (In)Equality

Now that the initial fall-out over last week's Supreme Court's decision in Ricci v. DeStefano has settled and the implications for Judge Sotomayor's confirmation hearings have been discussed and debated, we might take some time to consider the where this decision falls in the longer arc of affirmative action and the Civil Rights act -- 45 years after its passage.

Specifically, two sections of Title VII of the Civil Rights Act of 1964 have long been in tension: Employees are protected from "disparate treatment" -- i.e. intentional actions that result in discriminatory outcomes. But they are also protected from "disparate impact" -- i.e. unintentional conditions, such as a biased test, if those conditions produce discriminatory outcomes. Affirmative action policies rest on the horns of this tension: Institutions -- such as universities or employers -- act intentionally on the basis of race in order to compensate for an implicit disparate impact on racial minorities or other protected groups.

In other words, they are using disparate treatment to fix putative disparate impact. Justice Anthony Kennedy, writing the majority opinion, clarified that such efforts -- like throwing out the test results for the New Haven firefighter promotions -- must be justified by the "strong-basis-in-evidence" standard. In other words, there has to be pretty powerful evidence that the test was unfair. The fact that no blacks made the competitive cut is not evidence in itself. That would be confusing the cart (the promotions) and the horse (the exam).

In light of this, we might reasonably ask ourselves: What would constitute evidence? Until this question is answered, Justice Kennedy's majority opinion gives us little clarity on how to insure equal opportunity in America. Though simpler to administer, "equality of outcome" -- what quotas seek to implement -- has been rejected by U.S. courts and does not sit well with American ideology. So we are left with the tough job of figuring out whether someone's chances -- i.e. opportunities -- have been adversely impacted by their race, rather than whether his/her outcomes were worsened. That's a much taller task.

What's more, the question of evidence of unintentional discrimination is harder to pin down in the case of employment opportunities than it is in the case of education -- and especially hard for jobs like firefighting where outcomes are tough to measure. The difference lies in the fact that college is a preparation for the labor market -- a means to an end, a.k.a. a path to opportunity. We can measure the end results -- how minorities and whites fare once they graduate -- in order to ask whether affirmative action policies are rectifying an inherently unlevel admissions playing field or, rather, putting unqualified minorities in educational environments that they cannot handle at the expense of qualified whites.

For example, in The Shape of the River, authors William G. Bowen and Derek Bok demonstrate that minority students admitted with lower SAT scores than their non-minority counterparts go on to perform equally well as life marches on in a variety of contexts and measures ranging from professional achievement to community service and not as well in others, such as income. In other words, the results are mixed, depending on what you think the purpose of college is.

So if it turns out to be fairly hard to measure disparate impact in college admissions, it's nearly impossible for employment. How would we measure the outcomes -- i.e. the productivity -- of a lieutenant or captain in the New Haven Fire Department? Lives saved or fires prevented? Social cohesion in the firehouse or cleanliness? Money saved or dollars spent? It's impossible, of course, since many of the would-be indicators are in tension with each other.

It would be simpler to scrap our whole approach to discrimination -- written in a bygone era of de jure discrimination -- and start from scratch. Clearly there is a racially disparate impact in New Haven -- but it's probably not on the exam, it's in life: Blacks in the area go to worse schools and come from families that are, on average, much more disadvantaged economically. African Americans and Latinos are much more likely to have one parent at home growing up and are exposed to more dangerous environments. By the time they take the promotion test, this disparate impact is buried under years -- or even generations -- of policies and conditions.

Expecting a single test to compensate for all that is unrealistic -- silly even. This is a symptom of a larger pathology in the American psyche where our deep and abiding belief in meritocracy clashes with our culture of individualism: We expect testing (and schools) to do the work of social policy when it can't really carry that heavy a load. Getting potentially biased questions redacted from an exam by an outside consultant is usually too little, way too late.

So if we want to ensure true equality of opportunity, we need to update our toolbox and focus on the disparate lives of disadvantaged groups -- by race, class, and disability status, just to name a few -- long before kids take the SATs or firefighters take an "externally validated" exam. Until then, Ricci v. De Stefano won't be the last we've heard on the issue of employment discrimination.

Follow Dalton Conley on Twitter: www.twitter.com/daltonconley

Comments

[Napoleon]

Dean Conley says "It would be simpler to scrap our whole approach to discrimination -- written in a bygone era of de jure discrimination -- and start from scratch." This however can't be done. The nation's history, a major part of which was de jure discrimination, has brought it to this impasse, and the remedies to undo it are limited, though multiple. Skills and abilities in certain fields, like opera and firefighting, can perhaps be assessed by actual performances in simulations, dispensing with written tests. But in other fields, written tests used in conjunction with other assessment methods are appropriate. Hence, there is a need to focus on education and other means to alleviate the disparate impact of the nation's history upon certain minorities.

[baldblackman]

Do such test really measure abilty or leadership potential?
texasteph12570 do you know that Ashkenazi Jews have a higher IQ than Seephardic (Mizrahi) Jews? How can you account for that if its genetic? Is it being in Europe that made Ashkenazis smart if so why not all Europeans? When did the differences between Askenanazis and Mizrahi Jews start? For most of Ashkenazi's time in Europe they where isolated from European culture and aside from reading the Torah and the Talmud most Jews literacy didn't extend further (i.e. reading for pleasure)
People need to remember that within group varriation is almost always greater than between group varriation and that the differences in IQ socres that we are talking about is vary small .
Chipw I think its modern secular "Jewish culture values education and perhaps being inquisitive." not extreme Orthodox Judiasm which dosen't have much use for nonreglious education (of course I'm over simplyfing it but the Haredi and such will be more impressed with brilliance in the Halakha than quantum mechanics per se; and as for being inquistive again its secular culture that values being inquisitive (the Haredi won't try to find out why the sky is blue or what happen when an object apporaches the speed of light).

As for African Americans yes we don't place enough value on education, but anti-intel­lectualism is rife in America ( as witness by the number of people who don't belive in evolution).

[OldSchoolLiberal]

In a sense it is condescending to say that having only one parent is a disadvantage.

Korean americans have all kids of advantages especially in the first generations. Why do first generation Koreans score higher than whites and blacks in English SAT's?

Either it is genetic or it is hard work.

I lean towards the hard work.

[Patricia Fontes]

One of the best things on education and equality that I've read. To put it simply: the US cannot have one of the biggest internal income and wealth disparities in the world and have educational outcomes that are world class. Why do Americans appear to get pleasure out of punishing the people that "life in general" has already punished most?

[longtalldrink]

the feeling of superiority is addictive.

[Badbone]

This article is the perfect example of why racial preferences and "equal opportunity" are so dangerous.

The author makes the case that, since minorities typically score so low in IQ, SAT, and other tests, the tests must be flawed. Which is a bit like complaining that your SUV gets low gas mileage, so the answer is to redfine how long a mile is.

[kfields108]

HuffPost's Pick

You clearly didn't read the article. He's clearly saying that it's NOT about the tests. What he's saying is that we have to examine all of the underlying factors that contribute to performance on these tests such as institutionalized racism, economic disparity, and educational disadvantages. Looking at the test as "biased" or blaming the test for these disparities is ludicrous... it's just a test.

The answer isn't to redefine the mile, it's to look at the Factory and see how one SUV was systemically made differently to have lower mileage than another and rectify that disparity.

On another note, "Affirmative Action" is giving preference to EQUALLY QUALIFIED people who have been historically disenfranchised. I feel like it's fair to choose an equally qualified minority because they managed to do just as well even though the person in the majority likely had a 300 year head start. Quotas are a bastardization of Affirmative action and people need to be taken in on their merit... granted we live in a system where you're more likely to have a certain "merit" when you have a certain race, class or gender, so who knows how to fix it...

[cn2004]

And you know that the black test takers were all economically disadvantaged growing up? All went to substandard schools? All came from broken homes? And all the white test takers experienced none of those things? You sure make a lot of assumptions.

[Ahmedkhan]

You misunderstand Affirmative Action. The various social program that fall under its banner are almost always designed for nothing more than to produce a certain "look" to workplaces, student bodies, etc. Its mechanism requires that some unlucky person be rejected for having the wrong genetic lineage. It is temptingly expedient. It is based on the shallow notion of "end justifies the means."

The article calls on society to seriously consider investing in the long term, difficult, and expensive efforts necessary to bring about real equality for all its citizens, efforts most segments of society, particularly big business and government, generally avoid in favor of the "quick hit" or "spectacular" results that Affirmative Action can bring about.

Laws are designed to "level the playing field." Affirmative Action's aim is to tilt the playing field in another direction. Take on the necessary hard work now and do right by everyone.

[furion4865]

Developers of the SAT released a study that stated, people that take SAT preparatory courses don't score any higher on the exam than those that don't," anyone with half a brain knows that's a lie. As a matter of fact, the study was published here on the Post and almost universally, people stated that their SAT prep course helped them achieve a higher score. The maker's of the SAT had to create a false study in an effort to quash the growing recognition that a kid's parents socio-economic status serves as a better indicator of test performance than any other factor. I believe Mr. Conley's arguments, no matter oft recited have the effect of preventing blacks from questioning examination legitimacy or results, it promotes a myth that somehow whites "dispropor­tionately' scoring higher on an examination is the rule and can't possibly be the result of intentional exam rigging, afterall the black folks came from single parent homes, they went to poor schools----the reason no blacks scored higher in New Haven had to be the intellectual inferiority of the black firefighters, it couldn't have possibly been discrimination in scoring, or the fact, that the essay portion of the examination counted for 60% of the score and was graded by other senior white firefighters. .The black firefighters need to sue the city and audit every aspect of the examination from examination content validity to scoring guidelines, procedures and verification. Nobody wins all of the time unless the game is fixed.

[langej]

This is not an easy area, either morally or intellectually.

There is a test-taking gap across races - caused by an as-yet-unknown combination of nature, nurture and cultural bias - that means asian do better than whites, who do better than hispanics, who do better than blacks on a wide variety of tests, from IQ to SAT to in-class tests designed by the local teacher.

Hence, race-blind testing = permanent advantage (hence overrepresentation) of asians & whites.
Adjusted testing (e.g. for affirmative action) = less meritocratic system & lower standard result
Both policies have serious moral and social consequences.

No differential treatment says: don't be cruel
No differential impact says: use any test you like as long as it produces this pre-judged result.

I do not envy the supreme court on this one.

[DHFabian]

Actually, some of our most inadequate schools are in rural America -- a place that is largely ignored.
And a great deal of our poverty is in rural areas. Conditions dramatically worsened since the 1997 welfare "reform."

With each economic downturn, more people fall into poverty, and without a social safety net, fewer are able to work their way back out. Our "failed" welfare system once enabled families to get through rough times, then back to work. In fact, before welfare "reform", some 80% of participants on AFDC quit welfare in under five years. Welfare "reform" made it much more difficult to get out of poverty. Each economic downturn increases the number of permanently poor. Under the best of circumstances, we don't have a full-employment economy. So...what should we do about those who are left out?

Children who are hungry, and who experience frequent moves as their parents desperately seek work, can't concentrate and learn in school. At a time when higher education is absolutely essential, we are ensuring that fewer people can obtain it. We are building a feudal society.

Unfortunately, even our progressive community has been apathetic, not quite "getting" what the poor have to do with anything. Think of our economy as a house. We're busy remodeling the attic while the foundation is rapidly crumbling. If we don't shore up the poor, of course the country will fall.

[DemocraticVoter]

Why Ricci v. DeStefano IS important:

(1) Intentional discrimination often occurs behind closed doors -- COVERT discrimination is not equivalent to UNINTENTIONAL discrimination.

(2) The 4/5 rule -- where the percentage of minority candidates being selected is less than 4/5 the majority candidates -- allowed a lawsuit to proceed to discovery where there was at least a possibility to prove covert discrimination.

(3) Without the 4/5 rule, companies can now discriminate so long as they do not make blatant statements about how they refuse to hire minorities.

(4) Griggs v. Duke Power (1971) demonstrates how covert discrimination occured and continues to occur in both large and small organizations to this day.

[Juanx]

Why am I remembering decisions on the outcome[s] of firefighter exams being questionable due to the amount of stolen exams and cheating. During this period many challenges were brought against various cities/cou­nties/stat­es. Also women being denied the right to be accepted as a candidate for any position.

Is it possible that New Haven felt compelled to toss out the exams based on these actions and not just the plain vanilla decisions being handed down by the courts? Also, it is highly suspect that Ricci became the only filing complainant.

[Bladernr1001]

You know what...if a woman can drag my ass out of a burning building on her shoulders then she gets the job....otherwise, I want the big strong dude on the job.

[JustMyWords]

Departments that require physical agility tests for hiring give them to both men and women. Of course, why would a department give a silly test? Obviously, men can always handle the job, and we know women can't, right?

[longtalldrink]

There WAS a discussion regarding the issue of a long history of white New Haven firefighters and how their sons, nephews, brothers etc. got on board. So...my question is simple, is this a hidden "good old boys" network?

[JustMyWords]

Actually, Juanx, you've pretty much hit the nail on the head.

After getting the test results and seeing the disparity, administration in New Haven feared that the results were questionable, decided not to use the results at all, and planned a new promotional process. From a management standpoint, it's a logical decision, especially considering the kind of uproar you can create within a department if the promotion is seen as unfair.

To me, it's ironic that by making the effort to promote fairly, they ended up being sued. Of course, it would have helped if they had done their homework in the first place. Morale drops like a rock when someone that the others see as "unfit" gets the nod for a promotion - and the rank and file rarely consider test scores as a good indicator.

[Romeover]

Conley is correct to say that the discrimination takes root long before the firefighter exam or the SAT's. We abandoned, as a nation, the "separate but equal" concept of education, and have replaced it with "separate and grossly unequal" education.

I have no children myself, so it's easy for me to say "It's about the children." They are the hope, or failure, of the future. Whether they're black gang-bangers in ghettos or white crackers in the heartland, if we don't educate them, if we don't invest in them, we have nothing to look forward to.

Healthcare isn't the real battle; it is universal quality education.

[ReconDog]

The first shame here falls on the government school system which produces such disgraceful results.

The second is the disgusting way liberal politicians and activist treat blacks--essentially they assume that they are inferior, incapable of initiative & self-responsibility and can only succeed with the great white liberal helping hand. They've carefully fostered a culture of dependency---and they have succeeded grandly.

I quote Frederick Douglass:

"Personal independence is a virtue, but there can be no independence without a large share of self-dependence, and this virtue cannot be bestowed" [by government]

Finally, irrespective of race, we are all endowed unequally. Some are great mathematicians, others great muscians etc, etc. One thing is for sure: not all of us can be either, nor can we all be great at everything. In short, some people are smarter than others and race has zilch to do with that.

[Romeover]

Granted, some people are smarter than others. But we should have an educational system that brings out the best in each and every one of us, not only in the children of the affluent.

[Idea1013]

While I agree, to a point, we all need to remember that healthy self-efficacy goes a long way, too. One may grow up in a low SES household, have only a single parent raising them, face many adversities, and still succeed- the government, the school system, and employers can only do so much; the rest is up to the individual to recognize strengths and weaknesses and act accordingly.

[Bladernr1001]

Yes, but how does government legislation overcome the fact that some groups place higher value on education than others? You cannot legislate that out of existance and that is why in a nutshell that the welfare state has failed so miserably. We were doomed when the elites of the 1950's and 1960's decided that you could legislate equality of outcome. This was a fatal path ever since and has made the climb to equality all that much harder for the targets of welfare (ie: poor blacks and other "disadvantaged" groups). The welfare state ended up doing much more harm than good by encouraging entire generations to become more dependant and less self sufficient. The liberal elites who enacted this monstrosity are the true racists. They blithely assumed that these groups lacked the "necessities" to compete on a truely level playing field.

This misplaced "compassion" destroyed the lives of many otherwise ablebodied people.

[texasteph12570]

i beg to differ. i applaud your honesty and agree that the public school system as with anything the government runs is a shambles. usually run by incompetent boobs. as the old saying goes, " those that can do and those that cant teach". there are certainly many qualified teachers but the unions protect all of the unqualified instructors and our children suffer.

as for race and intelligence, i am not bigoted or a racist, as i am married to a multiethnic person. but it is true that the different races have differing levels of intelligence. for instance studys have shown that of all races the jewish people (not really a race i know) generally have an average i.q. of around 110.
with asians next and other races below that level. i am not here to degrade anyone but i was raised to tell the truth and for any one to mislead is an err that needs correcting. everyone on this planet has a calling. to some it is mathematics, and others its athletics. some races are better at certain interests than others. why should anyone be insulted by the truth. we should be able to discuss any event without any respect of race. my bible teaches that all men are equal, not divided by race.

[Chip W]

You make an interesting, extremely politically incorrect, assertion - intelligence varies with race.
A favorite question of mine is: Given that we are different, what differences are there other than the obvious (eg skin color)? There may be differences in intelligence, or different types of intelligence.
But I see it as an open, unanswered question. You site the IQ level of Jews. But how objective and comprehensive is an IQ test at measuring intelligence. Also Jewish culture values education and perhaps being inquisitive. How can you separate the innate from the culture, ie nature from nurture?
What you see as truth, I see as an interesting possibility, and there may not be a good way to measure it.

[enhancedvibes]

This whole response is conservative gobblydegook nonsense. All of your catchphrases are just talk radio regurgitation and then you have the gall to quote Douglass, ugh. People of color need the help of their white anti-racist allies to combat institutionalized racism/dis­criminatio­n that our government hath wrought. I dont see any conservatives or Republicans in any great numbers stepping up to this ally position, so dont mislead others with your lame propaganda that liberals keep the black man down. There IS a reason why the Republican Party presents a monochromatic "face" to the nation and the world and it has little to do with the Democratic Party and liberals brainwashing black folks.

This issue is not a matter of some people are just smarter than others, regardless of race. Utterly ridiculous.

[texasteph12570]

here i site two examples of where you are incorrect. the conservative couldnt care less about the color of your skin. we believe that if you are willing to work at your prosperity then you should be free to pursue whatever industry your hands may produce. as for your assertion that the government has wrought racism i would agree. woodrow wilson, margaret sanger, j.edgar hoover, roosevelt, bull conner, and most of the klan, all democrats. all racist.
as for douglass, i feel confident he would throw your racial charity in your face.
everyone knows that if you give a man a fish he will eat for a day.
if you teach him to fish he will eat for his lifetime. the progressive movement and the current democrat party do keep the ethnic population under their control by continuing this great society farce, which by the way has created more poverty in the inner city and driven families apart all in the name of dependence. if you were even half as intelligent as you think you would see,

"Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition". jefferson

[kbdancer]

The fact that we are discussing racial discrimination and social equality proves that we're not living in a "post-racial" world like some claimed that we are in light of Obama's ascent to the Presidency. Conley speaks truthfully, and significantly, when he claims that tests can't take on the job of creating social equality, though something must. In my opinion that something is both increased political and social awareness, openness, and the just actions and legislation that results.
MJinCanada also brings up an interesting point about biases and backgrounds of those writing tests differing from those that take them, and the need for fair and open tests that occurs from such disparity.

[MJinCanada]

I think the point can be made that any test reflects the background, priorities and biases of the people who write it.

These may not be the background, priorities and biases of the people who write it.

Ergo, the test needs to be written by a multicultural committee of respected senior firefighters who are also up to date on all vital skills. Tricky.

[longtalldrink]

Correct, and what is up with the "essay" portion worth a whopping 60%? And the panel was all "older" white firefighters.

[Napoleon]

Dean Dalton Conley makes several worthwhile points but it's not evident they are relevant to the specific facts of the Ricci decision. Nothing is known about whether the minority applicants in the case lived in a one or two family home, whether past discrimination in the New Haven fire department operated directly or indirectly to create disparate access within the department, whether the outreach of the test creators in talking to firefighters about job specifications was free of disparate impact, whether the manuals of the department that were the basis for the exam questions were equally available to all, etc. We don't know the answers to the questions because the Supreme Court, in a strange maneuver, refused to allow a trial on these and other issues and instead simply granted summary judgment for the plaintiffs. Dean Conley is right to insist that we "focus on the disparate lives of disadvantaged groups". This is partly because that's where the action is and partly because the Supreme Court in a much earlier case ruled that "societal discrimination" is an irrelevant factor in justifying affirmative action. Still, it's important to keep in mind that employers today continue to have a variety of options for use in assessing requisite job skills that will enable them to diminish disparate impact. Alleviating the disparate lives of disadvantaged groups will require far more innovative methods, in education and elsewhere.

[Bladernr1001]

Everyone neglects to consider that the white guys may have simply studied harder than the black guys...whos knows?

[Bladernr1001]

And if that was the case (whites studied harder than the blacks) the racial "disparity" there could have surely been caused by the very cilivil rights laws meant to give more protection to the blacks.