The other Judge Sotomayor thread

[DukeUsul]

Let me provide an example of racial (or cultural bias) in a test.

My wife is a school psychologist. She described this question on a popular IQ test given to kids. It's recently been revised and this question was removed.

Subjects are shown a series of drawings and asked to identify what's missing. In one example, an old-style phone is shown with the cord missing (I believe this question has also been removed from the test).

The one interesting question showed a piano with all of the black keys missing. Now how many seven year olds growing up in a poor "ghetto" have ever seen a piano or have any idea what the keys on one look like? How many upper-class wealthy kids have a piano in their house and/or take lessons? While not directly a question of their race, those who are of lower socio-economic status (in this country, a group that has a much higher proportion of minority races) are at a tremendous disadvantage when asked these questions that require understanding of things outside their culture. Is the poor black kid less intelligent because he has never had the opportunity to see a piano? I don't think so. But his IQ would score lower because of this fact.

I know this has nothing to do with the discussion at hand, but I think it's a fascinating example of bias in probably THE most common IQ test given to kids.

[CameronBornAndBred]

From a discussion I listened to on NPR today, they mentioned that one of the factors in the case favoring the town's position was that in the past (I'm thinking 10-20 years ago) there was proven discrimination in the fire department. Without passing judgement on whether the town's decision to toss the results was fair or not, it should be noted that the past history was one of reasons the choice was made.

[Shammrog]

Interestingly, in this case, New Haven BENT OVER BACKWARDS to ensure the test was not "racially biased." All sorts of analysis and consulting. As an example, the oral part of the exam was administered by 9 three member panels. Each panel had one white, one black, and one hispanic. Etc.

From what I gather, New Haven also could follow a procedure - under existing law - to demonstrate that the test was not racially biased. But they chose not to do, so fearing a lawsuit. As it turns out, they got a lawsuit anyway. Just not from the parties that they had originally anticipated.

[DukieInKansas]

Some facts on the tests from http://topics.law.cornell.edu/supct/cert/07-1428

"In 2003, the City of New Haven, Connecticut ("New Haven") administered written examinations in an effort to fill vacant lieutenant and captain positions in its Fire Department. See Brief for Respondent, John DeStefano et al. at 2. The written exams were to account for sixty-percent of the ultimate assessment of a candidate's ability to successfully serve as a lieutenant or captain. See Brief for Petitioner, Frank Ricci et al. at 7. Forty-percent of an individual's assessment consisted of an oral exam evaluating a candidate's ability to lead others in emergency situations. See id. When New Haven officials analyzed the written test results, they found that the pass rate for black candidates was approximately half the pass rate of white candidates. See Brief for Respondent at 5.

New Haven's City Charter requires that the Board of Fire Commissioners use civil service examinations based on a "Rule of Three," where only the top three highest scoring candidates on each of the lieutenant and captain exams may be awarded a promotion. See Brief for Petitioner at 4. Under the Rule of Three, no black candidates could be awarded a promotion, since none of the top three highest scores on either test belonged to an African-American. See id. at 10. The highest scoring black candidate for the lieutenant position was thirteenth; the highest scoring black candidate for the captain position was fifteenth. See Brief for Respondent at 6."

Just some interesting info on the test. It wasn't that no African Americans passed, it was that the % of AAs that passes wasn't the same as the % of whites that passed. There was apparently a board that looked at the people who passed, with public hearings, and they deadlocked on whether to to promote or not. Fear of being sued for not having AAs in the promoted group played a role in not passing anyone on for promotion.

[TillyGalore]

Let me provide an example of racial (or cultural bias) in a test.

My wife is a school psychologist. She described this question on a popular IQ test given to kids. It's recently been revised and this question was removed.

Subjects are shown a series of drawings and asked to identify what's missing. In one example, an old-style phone is shown with the cord missing (I believe this question has also been removed from the test).

The one interesting question showed a piano with all of the black keys missing. Now how many seven year olds growing up in a poor "ghetto" have ever seen a piano or have any idea what the keys on one look like? How many upper-class wealthy kids have a piano in their house and/or take lessons? While not directly a question of their race, those who are of lower socio-economic status (in this country, a group that has a much higher proportion of minority races) are at a tremendous disadvantage when asked these questions that require understanding of things outside their culture. Is the poor black kid less intelligent because he has never had the opportunity to see a piano? I don't think so. But his IQ would score lower because of this fact.

I know this has nothing to do with the discussion at hand, but I think it's a fascinating example of bias in probably THE most common IQ test given to kids.

That's a great example, for school aged children. Thank you for sharing.

But to the issue at hand, and DukeUsel, I know you weren't necessarily trying to answer my question, how could a question on a firefighters promotion exam be racially biased? Unless you're asking something to the effect of; there are four people in a burning building, two white and two black, whom do you save? That would certainly be racially biased. But, if you are asking what is the best way to save four people in a burning building, that isn't a racially biased question.

As DinK pointed out, I'm not in the racial minority either, thus don't get "it". I am trying to get "it" though.

[CameronBornAndBred]

Let me provide an example of racial (or cultural bias) in a test.

My wife is a school psychologist. She described this question on a popular IQ test given to kids. It's recently been revised and this question was removed.

Subjects are shown a series of drawings and asked to identify what's missing. In one example, an old-style phone is shown with the cord missing (I believe this question has also been removed from the test).

The one interesting question showed a piano with all of the black keys missing. Now how many seven year olds growing up in a poor "ghetto" have ever seen a piano or have any idea what the keys on one look like? How many upper-class wealthy kids have a piano in their house and/or take lessons? While not directly a question of their race, those who are of lower socio-economic status (in this country, a group that has a much higher proportion of minority races) are at a tremendous disadvantage when asked these questions that require understanding of things outside their culture. Is the poor black kid less intelligent because he has never had the opportunity to see a piano? I don't think so. But his IQ would score lower because of this fact.

I know this has nothing to do with the discussion at hand, but I think it's a fascinating example of bias in probably THE most common IQ test given to kids.

That's a great example, for school aged children. Thank you for sharing.

But to the issue at hand, and DukeUsel, I know you weren't necessarily trying to answer my question, how could a question on a firefighters promotion exam be racially biased? Unless you're asking something to the effect of; there are four people in a burning building, two white and two black, whom do you save? That would certainly be racially biased. But, if you are asking what is the best way to save four people in a burning building, that isn't a racially biased question.

As DinK pointed out, I'm not in the racial minority either, thus don't get "it". I am trying to get "it" though.

I thought the issue was the town's assumption that the test must have been biased, since only whites passed it, which is why they tossed the results. I believe that's why the court overturned the judegment, saying that the test was not biased, and the results were valid.

[Shammrog]

No - not to split hairs, but this is important. The town's action wasn't because it believed the test itself was biased. They believed that the disparate results could be used to sue the town under Title VII's disparate impact provisions.

[TillyGalore]

No - not to split hairs, but this is important. The town's action wasn't because it believed the test itself was biased. They believed that the disparate results could be used to sue the town under Title VII's disparate impact provisions.

And they were sued anyway. As DinK noted, it was a catch 22 for the town.

[Shammrog]

No - not to split hairs, but this is important. The town's action wasn't because it believed the test itself was biased. They believed that the disparate results could be used to sue the town under Title VII's disparate impact provisions.

And they were sued anyway. As DinK noted, it was a catch 22 for the town.

Right. Which makes their reasoning look kind of dumb. You can *always* get sued. Just a question of who prevails. They should have followed the procedures for showing that the test was not in violation of civil rights law and then promoted based on the predetermined criteria. I think they were more worried about bad PR than losing under Title VII.

[CathyCA]

I don't really understand all of the bickering. Does it really matter what color the fire captain is when your house is burning down? If I were a taxpayer in New Haven, I would be upset that my tax dollars were financing all of this mess.

[rockymtn devil]

Right. Which makes their reasoning look kind of dumb. You can *always* get sued. Just a question of who prevails. They should have followed the procedures for showing that the test was not in violation of civil rights law and then promoted based on the predetermined criteria. I think they were more worried about bad PR than losing under Title VII.

Assuming this is true (it assumes that the test would've been appropriate for certification, which I'm not sure is true) it's red herring.

Title VII doesn't require the employer to make the right decision, or a smart decision, or a decision that isn't "dumb". In fact, it can make a decision solely for the purpose of avoiding bad PR or one that is, without question, the stupidest thing on earth. All the law requires is that the reason given not be discriminatory.

I think it's important to emphasize that the correct entry point for analyzing this case is to determine if the plaintiffs can show a prima facia case of discrimination. It's difficult to ascertain how they could have (and the majority in this case begins with the assumption that the case has been made despite the fact that both lower courts ruled that it had not) given the facial neutrality of the alleged employment action. All the City had to do was provide a non-discriminatory reason. It did that. Case closed.

Perhaps most curious is that the majority did not remand back to the lower courts to apply the new standard. It's very rare for the SCOTUS to create new rules and definitions and then also make a dispositive ruling on the underlying case without simply sending it back to the lower court to apply the new standard. My hunch is that this was done because, even with the new standard, the plaintiffs can't show either of the primary elements of a prima facia case, and the Court knew the lower courts would still rule against them. It appears that the majority made sure that it got the outcome it wanted, even if it meant disregarding the letter of the law.

[Shammrog]

From everything I have seen/read, the test was very carefully designed, and based on national firefighting texts and materials. So, I doubt very much that it could have been shown to be racially biased, or contain spurious elements with the effect of producing racial bias.

However, I understand what you're saying. Being the devil's advocate (haha - get it?) - if the reason given is to produce (or not produce) a particular racial mix, isn't that reason "discriminatory?"

[rockymtn devil]

The reason given wasn't to achieve any sort of racial mix. The reason was to avoid a lawsuit and that's not discriminatory. It may appear to have a discriminatory outcome (although, again, no promotions were made or denied as a result of the administrative decision), but in disparate treatment, it's about the intent. The plaintiffs could've proceeded under disparate impact--which puts more emphasis on the outcome--but they chose not to (even if they had, I still don't see an adverse employment action).

Edit: And my understanding of the test is that the Union pushed for its inclusion in the promotion equation decades ago when its leaders were exclusively white and there were a lot of questions about its decisions being made solely to advance the interests of its white members.

In the end, a city that is 2/3 black and hispanic will have a Fire Department with no black lieutenants, possibly 2 hispanic lieutenants, and somewhere between 13 and 15 white lieutenants. Not sure how that isn't a discriminatory impact.

[Shammrog]

The reason given wasn't to achieve any sort of racial mix. The reason was to avoid a lawsuit and that's not discriminatory. It may appear to have a discriminatory outcome (although, again, no promotions were made or denied as a result of the administrative decision), but in disparate treatment, it's about the intent. The plaintiffs could've proceeded under disparate impact--which puts more emphasis on the outcome--but they chose not to (even if they had, I still don't see an adverse employment action).

Edit: And my understanding of the test is that the Union pushed for its inclusion in the promotion equation decades ago when its leaders were exclusively white and there were a lot of questions about its decisions being made solely to advance the interests of its white members.

In the end, a city that is 2/3 black and hispanic will have a Fire Department with no black lieutenants, possibly 2 hispanic lieutenants, and somewhere between 13 and 15 white lieutenants. Not sure how that isn't a discriminatory impact.

Right. But, regardless of the history of the test's inclusion, from what I gather it is very much based on firefighting knowledge and widely recognized tests. So it doesn't have any spurious elements that might lead to a racially disparate outcome. True that the city leaders discarded the test because of fear of lawsuits; but that fear of lawsuits was based on the racial composition of the promotion group based on the prearranged criteria. So, (indirectly) the intent was to avoid promoting a group without the desired racial makeup. And, those who did qualify were denied promotion when the test results were discarded.

Sometimes you get racially unequal outcomes even when a particular set of qualifications isn't racially based. In other words, a racially disparate income isn't necessarily the result of racial bias. It can be the product of different achievement between the two groups. The test and other components were established beforehand as the criterion for promotions. If the test is based on firefighting knowledge and abilities, and you get whites (or blacks, or hispanics) passing at a higher rate, then what are you supposed to do?

[DukieInKansas]

One could argue that promotions were denied because those that passed the test reasonably expected to be at least interviewed as the next step. They were denied the opportunity to interview for the positions based on the color (or lack thereof) of the successful test takers.


The test was administered in 2003. I wonder what the promotions have been since that time.

[rockymtn devil]

Right. But, regardless of the history of the test's inclusion, from what I gather it is very much based on firefighting knowledge and widely recognized tests. So it doesn't have any spurious elements that might lead to a racially disparate outcome. True that the city leaders discarded the test because of fear of lawsuits; but that fear of lawsuits was based on the racial composition of the promotion group based on the prearranged criteria. So, (indirectly) the intent was to avoid promoting a group without the desired racial makeup. And, those who did qualify were denied promotion when the test results were discarded.

Sometimes you get racially unequal outcomes even when a particular set of qualifications isn't racially based. In other words, a racially disparate income isn't necessarily the result of racial bias. It can be the product of different achievement between the two groups. The test and other components were established beforehand as the criterion for promotions. If the test is based on firefighting knowledge and abilities, and you get whites (or blacks, or hispanics) passing at a higher rate, then what are you supposed to do?

1. The "indirect intent" aspect was dealt with in the McDonnell-Douglas hearing that happened at the District Court. Under the very strict standard for determining summary judgment on a Title VII action (strict standards put in place by the conservative block of SCOTUS) the trial judge ruled that the plaintiffs could not show that the reason given was a pretext for racial discrimination. Avoiding a lawsuit is a business decision. At the end of the day, unless the reason for putting the tests aside was to prevent these particular white firemen from promotion (something that not even the majority argues), it is not a discriminatory action. That's the wall that the conservatives erected; they simply chose to ignore it here.

2. Nobody was denied a promotion. Those who passed the test were still eligible for promotions under the now-never-determined other procedure. This may seem like splitting hairs, but it's essential to this analysis.

3. With all due respect, your second paragraph puts too much emphasis on the test's alleged racial bias and not enough on the plaintiff's claim. You're right that the test may not have been biased (and there's a decent chance the EEOC would not have granted the black firefighters a right to sue letter; although my guess is Mr. Ricci didn't get one either). But that doesn't mean that the City would not have been sued (remember, this wasn't fear of liability; it was fear of suit). Given New Haven's history of Title VII suits brought by black firefighters, it likely had a good faith belief that it would be sued if it proceeded with the tests. Now, if a test is written that leads to a statistically odd racial balance, but the City feels it's legitimate and not racially biased it can present the defense that the test is related to business and/or a business necessity. But all of this irrelevant to the discussion at hand. The question is whether they thought they would get sued, and they did.

4. To answer DiK's question, no promotions have been given since 2003.

[OZZIE4DUKE]

4. To answer DiK's question, no promotions have been given since 2003.

So due to natural attrition, the fire departments are sorely lacking in experienced officers? That certainly doesn't make any sense.

[CameronBornAndBred]

4. To answer DiK's question, no promotions have been given since 2003.

So due to natural attrition, the fire departments are sorely lacking in experienced officers? That certainly doesn't make any sense.

I'm wondering how many people they have hired since 2003. If you know promotional status is up in the air until resolved by the courts, why would anyone sign on without the possibility of upward movement? Sounds like a lovely town to not catch your house on fire.

[Shammrog]

4. To answer DiK's question, no promotions have been given since 2003.

So due to natural attrition, the fire departments are sorely lacking in experienced officers? That certainly doesn't make any sense.

I'm wondering how many people they have hired since 2003. If you know promotional status is up in the air until resolved by the courts, why would anyone sign on without the possibility of upward movement? Sounds like a lovely town to not catch your house on fire.

New Haven is in general just NOT a lovely town.

[DukieInKansas]

Thanks, Rockymtn Devil, for the legal lessons. I appreciate the time you have taken to respond.