Instead of rejoicing over the outcome of the Ricci case, the fact that four justices signed on to GInsubrg’s dissenting opinion fills me with both anger at liberals and dread that the liberal viewpoint will eventually triumph over reason and sensibility. Ginsburg writes, “The Court’s order and opinion, I anticipate, will not have staying power.” I translate this as meaning that Obama is going to be president for another seven and a half years, so the liberals are only one heart attack away from reversing Ricci and imposing their will. It’s an unusually unsportsmanlike statement and demonstrates a disrespect for stare decisis that’s unbecoming of a Supreme Court justice. When something like that shows up in a dissent, it indicates that the decision created a great deal of ill will.
As I explained in my previous two posts analyzing the Ricci decision, the statutes passed by Congress are racially neutral and state that it’s unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 USC §2000e–2(a)(1). It doesn’t say that it’s only unlawful to discriminate against minority races. The Supreme Court has continuously paid at least lip service to the concept of race neutrality, and theoretically there are only a few limited circumstances in which it’s legal to discriminate against whites in order to favor minority races. One such circumstance is in education where the need for “diversity” is such a compelling interest that it allows colleges to consider race as a factor in admissions See Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
It seems clear to me that Ginsburg doesn’t agree with the idea of race neutrality. She believes that it’s always desirable to discriminate against whites, and presumably Asians as well, in order to benefit blacks and presumably Hispanics. But she dare not say this directly in her opinion, because such a direct statement of what the left really wants is unpopular with the majority of Americans, and it would also make her dissent irrelevant because it would be such an obvious misstatement of the current law, a misstatement of both the text of the statutes and judicial opinions interpreting the statutes. Her actual dissent is a lot more pernicious, because it undermines the holding of the majority by repeating and thus bolstering the standard liberal half-truths and lies.
If you don’t believe my view of Ginsburg’s true motives, then try to imagine how she might have decided this case if the facts were the same except the races were reversed. After the city gave the test, too many blacks did well on the test, and white groups in the city complained that too many blacks were being promoted, and then the city threw out the results under the pretext of disparate impact. Does anyone seriously think that Ginsburg would agree with the city? Hell no! It would be an obvious case of discrimination against blacks!
At the beginning of her dissent, Ginsburg mentions that the city is nearly 60% “African-American” and Hispanic. She thinks this bolsters the view that the fire department needs more black and Hispanic firefighters in command position. This is only because she judges fairness by outcomes. From my perspective, the fact that non-Hispanic whites are a minority in the city of New Haven makes it more likely that the city refused to certify the test results for the worst possible reason; to discriminate against a minority (non-Hispanic whites) in order to benefit the majority.
Ginsburg complains about the historic “failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often relied on criteria unrelated to job performance, including nepotism or political patronage.” Dissent at p.3. It’s ironic that she mentions this, because it’s exactly for these reasons that civil service hiring and promotions are so often test based. An objectively graded test doesn’t care if the test taker donated money to the campaigns of the currently elected politicians, or paid kickbacks to get the job, or is a relative of a powerful person within the civil service. Ginsburg should be praising the fairness of an employment practice which promotes white Republicans in a city run by black and Hispanic Democrats.
Ginsburg devotes several pages of her dissent to describing the process by which the exam company created and administered the exam. The actual questions contained in the exam aren’t available to me, and I’m not an expert in firefighting so even if I could read the exam questions I wouldn’t fully be able to evaluate their relevance to the job. Given my experience with companies which sell services to government, I will concede the likelihood that Industrial/Organizational Solutions, Inc was more interested in making as much money as possible rather than creating the best possible exam. But I don’t see where the law requires employers to use the best possible exam or the best possible employment practice, because perfection is an unattainable goal. Mediocrity is the inevitable norm in most large organizations. The question should be whether the exam was adequate for its intended purpose, despite its flaws. The purpose was to create a merit-based means to award promotions, free from corruption. The majority cited testimony “that the test questions were based on the Department’s own rules and procedures and on ‘nationally recognized’ materials that represented the ‘accepted standard[s]’ for firefighting.” Majority opinion at p.7.
Ginsburg would pick at every possible flaw she could find in the exam, and then rule that these flaws caused disparate impact against minorities, without any evidence at all that minority test takers did worse on the flawed questions relative to white test takers than they did on the good questions.
Ginsburg criticizes the very notion of written tests:
Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432.
We know that the real reason she dislikes written tests is because blacks perform poorly on them, but because she refuses to admit the real reason she dislikes them, she doesn’t need to explain why she thinks blacks perform poorly. I strongly disagree with the notion that written tests are a bad way to select fire officers. At an actual fire, the officer’s job is to direct the activities of the lower-ranked firefighters. Therefore, the officers must know a lot about firefighting practices so they can best direct the firefighters towards tasks which will minimize property damage and preserve human life. I would also say that intelligence is important for a fire officer, because the smarter officer would make smarter decisions during a fire. If black firefighters are unable to correctly answer test questions about the best way to fight fires, then they shouldn’t be promoted. It seems to me that a firefighting officer is not the sort of managerial job in which the manager can just rely on the expertise of his underlings, but hey, I’m open to hearing from people who actually work as firefighters who might disagree with my assessment.
Ginsburg admires other municipalities which don’t use written tests:
[M]ost municipal employers do not evaluate their fire- officer candidates as New Haven does. Although comprehensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assessment centers (“simulations of the real world of work”) as part of their promotion processes. P. Lowry, A Survey of the Assessment Center Process in the Public Sector, 25 Public Personnel Management 307, 315 (1996). That figure represented a marked increase over the previous decade, see ibid., so the percentage today may well be even higher. Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam. Id., at 309.
Despite the existence of “experts” willing to testify that these alternative selection methods are better, it’s not at all clear to me whether the real reason for using these other selection methods is to select the best possible officers, or merely to promote more minority firefighters. I find it very suspicious that the “best” selection method, according to Ginsburg, happens to be the method which promotes the most minorities.
If one believes Arthur Jensen, that the average black has a lower g compared to the average white, then these assessment centers are able to rank black candidates higher by either using less g-loaded selection methods, or by surreptitiously boosting scores of minority candidates in violation of 42 USC § 2000e–2(l) which prohibits race-based score adjustments. Assessment centers have an obvious financial motivation to violate § 2000e–2(l), because the reason municipalities use the centers is to obtain racially “correct” results. Given that assessment centers have a strong financial motivation to cheat with respect to § 2000e–2(l), and that their clients, the municipalities, have no motivation to call them out on the cheating, I would suspect that cheating is taking place.
Appellate judges, who are not experts in statistics, test bias, or industrial psychology, should not be in the business of making the sort of determinations which Ginsburg would like to make. Ginsburg is so obviously biased in favor of preferring the selection method that promotes the most blacks, one cannot trust her assertions that her favored method selects better fire officers.
The majority wrote about the inherent conflict between disparate treatment and disparate impact. At the beginning of Section II-B of her dissent, at p.18, Ginsburg writes:
Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions. Cf. ante, at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800 (1973).
Ginsburg can only write this because she believes, or pretends to believe, that disparate impact is always caused by racism. Ginsburg cannot comprehend, or pretends not to comprehend, the possibility that in many cases, black candidates are, on average, less able at performing the jobs in question.
In contrast, the majority allows the possibility that the black firefighters in New Haven lack the same ability as the high-scoring white firefighters to learn about fires and firefighting best practices, and to apply that knowledge to fire situations
Unfortunately, so long as liberals insist on wrongly believing that disparate impact is always caused by racism, and that black job candidates are, on average, always as able as the white candidates, the matter will not be settled. If liberal Democrats continue to hold the office of President until one of the five majority justices retires, then Ginsburg’s ominous prediction of the decision “not having staying power” will come true.
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It's too bad I can't get paid money to analyze and write about court decisions for a living. It seems like it would be a fun job.