Monday, July 06, 2009

Changing the Game

Is the Supreme Court's Ricci case the new Plessy?

I'm not one to think so, but there will be far reaching effects of this case as well as unintended consequences. Many of those will start inside our divided political narrative between those who think Civil Rights laws extend special priviliges on one hand and those who think Civil Rights laws don't go far enough on the other. Neither side seems willing to use any empathy to realize where the other side is coming from, nor does either side seem willing to accept realities on the ground. Many folks outside the case itself and the legal academia and sociologists who study it will never truly get what happened here, and will instead have their beliefs filtered to them through the experts and pundits they choose to listen to. I can say this is unfortunate, even as I fall into that category (I've been following it on Slate, which is where my links will come from).

The case is a big one, and the first post-Ricci results that will affect the nation as a whole are political ones: the confirmation of Sonia Sotomayor and the exposition of conservative judicial activism. Both Sotomayor's decision to follow the laws as written and the supposed Constitutionalist wing of the Supreme Court used the bench to effectively overturn legislatively composed and executively approved law will be ignored in our 24-hour sound-byte-sans-in-depth reporting media.

While some experts think this decision will "burn down civil rights law," and I've seen the TV talking heads celebrating the decision while dismissing the 4 dissenters, I haven't seen much in-depth examination of the history or details of the case. As I said, I've been following the analysis on Slate, where their writers have worked on such aspects as why whites tested better than blacks, who wrote the tests and where they came from, and what a more just promotional examination battery could look like.

(Hint: I'd bet the written test they gave was cheaper than a more in-depth assessment, and someone in the decision making process had a brother-in-law who worked for the testing company, but that's just my cynicism...)

For me the lesson is completely different, and far reaching in a very different way. Look at this case, if you will, from an organizational aspect, and take out any bias you assume either vested party in having. An organization that goes through all the trouble, money and time to have a certain test designed for promotions, that then distributes the information that promotions will be based on this specific test, that then allows people time to spend money, time and effort preparing for that test - should not summarily throw out the test if the results they get aren't everything they wanted them to be.

That they took such action should infuriate everyone in the New Haven fire department (and the New Haven taxpayers), because it wasted everyone's time, effort and money. That the city then hid behind race to cover its mistake is unforgivable. That is a huge reason there is so much divisiveness on race in this country.

They should never use that kind of test again. They should have to examine every future test's impact before the test is given. If they keep the test, or go with any future test, knowing the disparate impact, then they could be up for a discrimination lawsuit. That would be a positive outcome of this whole mess.

I didn't see that in SCOTUS's majority decision, however.



Dante said...

"I didn't see that in SCOTUS's majority decision, however."

Yeah, they didn't mention studying a test's impact before the test was given... except for when they did.

Start reading at page 39 of the pdf (page 1 of Scalia's opinion) to get the context. The money shot in question is on page 40: "Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally de-signed his hiring practices to achieve the same end? Surely he would."

If you're going to read the whole decision (and I suggest everyone do so), I would advise skipping to Ginsburg and then going back to Alito's concurring opinion. I don't like giving a concurring opinion the last word, but Alito spends a lot of time quoting the Ginsburg opinion. I know 93 pages seems like a lot but there's only about 2 paragraphs per page. Tree killers...

patsbrother said...

You're wonky.

Cousin Pat from Georgia said...

I apparantly missed pages 25 - 27 of the Court's Opinion:

"But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race." pg 25

"The racial adverse impact here was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. … Based on how the passing candidates ranked and an application of the “rule of three,” certifying the examinations would have meant that the City could not have considered black candidates for any of the then-vacant lieutenant or captain positions." pg 27.

(Emphasis mine)

I can see why civil rights advocates are worried. Especially the way the case was made into the larger cultural narrative of special privilages and white people screwed to benefit minorities when it was the test combined with the "Rule of 3" that is causing such adverse impact.

As far as studying the impact of the test before giving it, the Court's Opinions did address that positively in the majority opinion.

What the Scalia quote makes mention of isn't what I'm talking about either: tests should not be designed to "help" any particular group - they should be designed to more justly assess job-related skills and limit racial impact. That leadership in a firefighter's brigade is weighted 60% by your results on a multiple-choice exam is laughable, and the adverse impact noted even in the majority decision.

Lastly, the political ramifications of this decision re: Sotomayor's nomination are also important to note from page 20 of the Court's Opinion:

"Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them."

So much for the Fox News and talk-radio narrative play-up of Sotomayor's "race-based" decision making.