Showing posts with label Ricci. Show all posts
Showing posts with label Ricci. Show all posts

July 5, 2009

Why the Ricci case is the exception instead of the rule

Here's an old column I wrote in for Taki's Magazine on May 20, 2009, that I forgot to post a link to because I was traveling:

Following up on Jared Taylor’s article, the Ricci reverse discrimination lawsuit now before the Supreme Court is not one of those “hard cases” about which law students are warned. There is nothing anomalous about the discrimination against the New Haven firemen ...

Instead, what’s unusual is that we’re even hearing about the victimization of these unprotected majorities.

I suspect that’s largely because Frank Ricci and his friends are firemen. Firefighters show up more than any other profession in prominent reverse discrimination suits, perhaps because they enjoy civil service protection, unions, and, most of all, public admiration.

In a culture that increasingly holds blue-collar workers in contempt, firemen are the exception to the rule. They risk their lives for you, and they don’t give you speeding tickets. As the cops in Joseph Wambaugh’s LAPD novels are always telling each other: If you really wanted people to like you, you should have been a fireman.

It’s worth exploring some of the more subtle game theory reasons why there is so little public outcry against discrimination against white males other than firefighters. Why is Ricci close to being the exception that proves the rule?

First, affirmative action targets marginal white males.

For example, although white guys who are already firemen have a fighting chance of staving off unfair treatment in promotions, white guys who just want to become firemen are discriminated against in hiring with impunity. ...

Cheating an already employed white fireman out of a promotion is dicey because he doesn’t go away. He’s still a fireman. So he hangs around, he complains, he organizes other white firemen to complain to their aldermen about why the politicians aren’t releasing the results, maybe he talks his sister-in-law’s cousin who is a file clerk in Personnel into Xeroxing the secret results of the test and leaking it to him. And then he hires a lawyer.

In contrast, cheating some random white guy off the street out of his lifelong dream of becoming a fireman is a piece of cake: “Don’t call us, we’ll call you.” What can this marginal man do about his suspicions? Not much. He’s not connected.

Moreover, announcing that you are a victim of racial preferences is normally to admit you are marginal, that you would have only barely made the cut anyway. How uncool is that? [Notice that the New Haven plaintiffs were all the top scorers, because the entire test got ham-handedly thrown out. If the New Haven politicians had been subtler, more expert in their racial discriminating, they would have victimized just the marginal white scorers.]

Similarly, affirmative action, by definition, doesn’t impact those who made the cut. Consider Harvard students. While some freshmen may enter Harvard sore that affirmative action might have cost high school friends admission to Harvard, soon they have lots of swell new friends, who, unsurprisingly, are all Harvard students, unlike those losers they used to hang around with in high school who didn’t have what it takes to get into Harvard.

Hence, you don’t see a lot of solidarity in opposing affirmative action.


Read the whole thing there and comment upon it here.

My published articles are archived at iSteve.com -- Steve Sailer

July 2, 2009

"Who? Whom?" Part 418

As Justice Alito's concurring opinion in Ricci documented in amusing detail, Frank Ricci and colleagues were the victims of blatant racial discrimination by a black power broker and his allied white mayor in New Haven.

Stanford Law Professor Richard Thompson Ford says, that, well, equal protection of the laws isn't the point of civil rights legislation. Sure, the laws include a lot of colorblind rhetoric, but the whole point is to benefit blacks at the expense of whites, so it's a dirty trick for the Supreme Court to read the laws and the Constitution literally and apply them evenhandedly. He writes in Slate:

The plaintiffs in Ricci were undoubtedly sympathetic: hardworking public servants—17 of them white, one Hispanic—who expected that the exam they studied for and did well on would determine their eligibility for moving up the ranks. But their legal argument is the latest in a long-standing campaign to turn civil rights laws against themselves. There's a striking progression in the attacks on civil rights. In the early 1970s, affirmative action was widely considered to be a logical extension of civil rights principles: Even President Nixon—a man not known for his enlightened racial attitudes—supported it. But by the end of the decade, affirmative action was under attack as reverse discrimination. And now we see the next step in the march against civil rights with the part of federal civil rights law—Title VII—called "disparate impact" that prohibits employers from using promotional or hiring procedures that screen out minorities unless they can prove that the procedure is closely job-related.

My published articles are archived at iSteve.com -- Steve Sailer

Fixing the Supreme Court

That Justice Ginsburg's dissent in Ricci managed to get four out of nine votes points out major flaws in both American intellectual life and in the Supreme Court.

Some of what's wrong with the Supreme Court is structural. Justices used to drop dead of heart attacks before they aged too far into mental decline. By this point, lots of people have heard about the best solution: replace lifetime tenure with single 18 year terms, with the President getting to select two justices for each election he wins.

What nobody knows, as far as I know, is how to get there from here. How do you work out which Justice gets forced into retirement first to make room for new blood? This could be very hard to work out in a bipartisan manner. (If you have any technical suggestions for how the transition should be managed, please put them in the comments.)

Now that the Democrats have complete power in Congress and the White House, however, they can just go ahead an make this reform on their own. I can't imagine they would, though.

A more subtle defect in the Supreme Court is the lack of adult supervision. We still have the obsolete system of ailing Justices such as 76-year-old Ginsburg (cancer surgery in February) and extremely elderly Justices (Stevens is a ridiculous 89) being assisted solely by clerks who are largely in their late 20s: the senile being aided by the puerile.

Consider the futility of relying on clerks for a complicated topic like testing in the Ricci case. Do you think Justice Ginsburg's clerks were told the truth about testing when they were in law school? I don't care what your LSAT score is, to understand the reality behind Ricci, you have to do a lot of self-education and you have to learn about how the world really works. And that takes time. I moved to Chicago at age 23, and from then on I heard a lot about fireman and policeman testing, but it took me until my mid-30s to develop a mature understanding of the subject that wasn't just based on idealistic assumptions about how things should work. And I'm still figuring out things about fireman testing that make me say, like Huxley reading The Origin of Species, "How stupid of me not to have thought of that."

Occasionally, we see Justices instead hiring grown-up clerks with some experience of life (Justice Thomas recently hired a clerk who had already made partner at her law firm), but the salary is only around $65,000. (Supreme Court clerks get big signing bonuses from the private law firms that hire them when their year is up, but still ...)

What we need is a modest budget (say, $3 million per year across the 9 Justices) to allow each member of the Supreme Court to hire a mature Chief of Staff to manage the clerks, with, say, a three year term.

My published articles are archived at iSteve.com -- Steve Sailer

July 1, 2009

Ricci: When even the NYT Letters-to-the-Editor make sense

Traditionally, the New York Times has the world's worst Letters-to-the-Editor page, filled with credentialed but clueless poohbahs writing in to say how much they agree with the NYT's soporific editorials, but they were disappointed that the editorial didn't include some additional argument so dumb that not even the NYT Editorial board would fall for it.

It indicates just how badly the diversitarians got smoked intellectually on Ricci that even the NYT's Letters-to-the-Editor section (The Firefighters' Test: Flawed or Fair?) responding to the paper's editorial denouncing the New Haven test is pretty good.

My published articles are archived at iSteve.com -- Steve Sailer

Liberals to America: Hey, we were only kidding about "equal protection"

The Ricci reactions have made more evident that liberals are peeved that anybody takes seriously all that language in the civil rights laws about equal protection. In the liberal mind, the specific wording of the laws was just a sham to get them approved. The laws are really simply about "Who? Whom?" Thus, the idea of civil rights laws being used by the Supreme Court to protect the civil rights of white guys like Frank Ricci is an affront against all that is holy (i.e., civil rights laws).

Consider this entry, From Washingto to New Haven, the Rules They Are A-Changin', on the Washington Post's XX blog by Nicole Allan, the Slate intern/Yalie who coauthored with Emily Bazelon that long article in Slate entitled The Ladder.

The plaintiffs in the hotly contested affirmative action case Ricci v. DeStefano stood out among the crowd outside New Haven City Hall today. They wore dress blues and wide smiles or poker-faces that occasionally cracked into grins. They were, but for one, white, and they were celebrating their win in a 5-4 decision handed down by a sharply divided Supreme Court.

Mingling on the sidewalk before the conference, plaintiff Frank Ricci posed for photos with his family. Ben Vargas, the one Hispanic amongst the 18 plaintiffs, grinned beneath his sunglasses and crisp peaked cap. Attorney Karen Torre, surrounded by her clients and jokingly donning one of their caps, delivered a statement in boldly Obama-esque fashion: “We had the audacity of hope—that some court at some point would enforce the letter and spirit of the civil rights laws, accord to firefighters the recognition and respect that they deserve, and reject attempts to lower professional standards of competence for the sake of identity politics.”

It took some audacity indeed to invoke Obama in support of a lawsuit that called into question the country’s most significant civil rights statutes. ...

I kept thinking about the black firefighters I’ve been talking to over the past few weeks, none of whom I saw at the press conference. After decades and decades of lawsuits founded upon civil rights statutes, they have started to get ahead. Blacks and Hispanics, who make up about 60 percent of New Haven’s population, are now more or less proportionally represented within the rank and file of the city’s fire department. But their efforts to penetrate the upper management ranks have been less fruitful. Currently, only one of the city’s 21 fire captains is African-American. The anti-discrimination laws that once won them spots in New Haven’s firehouses are now the laws that have planted the smiles on Frank Ricci’s and Ben Vargas’ faces. There go the rules, changing again.

As Strobe Talbott wrote in Time in 1982:
Lenin, with his knack for hortatory pungency, reduced the past and future alike to two pronouns and a question mark: "Who—whom?" No verb was necessary. It meant who would prevail over whom? And the question was largely rhetorical, implying that the answer was never in doubt. Lenin and those who followed him would prevail over "them," whoever they were.

The funny thing is how modern American liberals consider their Who? Whom? mindset not cynical, but sacred.

My published articles are archived at iSteve.com -- Steve Sailer

Barone on Ricci

Michael Barone has a good column today on Ricci, Firefighter case shows seamy side of racial politics, which is clearly drawn from my stuff. Considering all the mean things I said about him a number of years ago, it's big of him to be a reader.

My published articles are archived at iSteve.com -- Steve Sailer

June 30, 2009

The intellectually feeble left wing of the Supreme Cout

Half Sigma offers a lucid review of Justice Ginsburg's dissenting opinion in Ricci:

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.

Read the whole thing.

That brings to mind the intellectual firepower imbalance currently on display in the Supreme Court:

The right wing:

Chief Justice Roberts is 54. He may have epilepsy, though.

Alito is 59.

Scalia is 73.

Thomas is 61.

Kennedy is 72.

Average age is 65.

The left wing:

Breyer is 70.

Ginsburg is 76 and was operated on in February for pancreatic cancer. It's really rather heroic that she (or her clerks) came up with the dissenting opinion at all, and its quality should be mercifully evaluated in light of that.

John Paul Stevens is 89. It's basically a scandal that somebody is on the Supreme Court at age 89. The press didn't complain about it during the Bush years for obvious reasons.

David Souter, the original Stealth Nominee, is only 69, but is apparently so out of it that he's packing it in.

Average age 77 (rounding down).

Basically, the liberal team on the Supreme Court consists of one very smart guy just entering his 70s and a very motley supporting crew. I wonder why Breyer didn't write the dissenting opinion. Perhaps he just couldn't bring himself to be as obtuse and mendacious as it took to get the job done.

Souter will be replaced by 55-year-old diabetic Sonia Sotomayor, who is hard working and will be a reliable vote for the left, but who isn't likely to be the second coming of William Brennan in terms of persuading the other Justices to move to the left through Machiavellian manipulation. Sotomayor got the nomination because Obama, in effect, drew a Venn Diagram consisting of circles labeled "Hispanic," "female," "not old," "liberal," and "credentialed enough to be plausible," and Sotomayor was the last one standing.

So, you can expect pressure to build on Stevens from the media and the Obama Administration (not that there's much distinction between the two these days) to get the hell out, no later than his 90th birthday next April.

Look for Obama not to draw a Venn diagram next time and waste another pick, but to find somebody who will be highly effective.

My published articles are archived at iSteve.com -- Steve Sailer

June 29, 2009

The left took an intellectual drubbing on Ricci

The ignorance and just plain dumbness of the purveyors of conventional wisdom is one of the most obvious lessons of the Ricci case. They got drubbed in the Supreme Court decision in large part because they don't know anything about topics like testing and couldn't think rationally about it even if they did.

Consider this statement today from the Washington Post-owned Newsweek by Slate's regular Supreme Court reporter Dahlia Lithwick:
Once upon a time, civil rights laws had two vehicles—one forbidding "disparate treatment" (overt racial discrimination) and one prohibiting disparate impact (discriminatory effects, regardless of intent). These two vehicles have been chugging along side-by-side for years, ostensibly to the same destination, until today, when they suddenly turned on each other and charged.

Stop for a second and savor just how stupid her assertion is.

Who could make a career reporting on legal controversies and simply not get until 6/29/2009 that there is a fundamental contradiction in both theory and practice between abolishing disparate impact discrimination and abolishing disparate treatment discrimination?

Clearly, the Slate team largely thinks about civil rights not in terms of equal protection of the laws, but in terms of "Who? Whom?"

Still, doesn't that get boring after awhile?

Ricci and Unions

Something worth thinking about is the valuable role the firefighter's union in New Haven played in keeping the politicians from getting their hands all over the fire department. It was the union that had negotiated the compromise by which 60% of the weight would be given to a written test (i.e., objective and blind-graded), while the city got only 40% of the weight given to a subjective oral test, where minorities made up almost 2/3rds of the judges.

In general, in cities that have tipped toward minority political dominance, where conmen like Rev. Kimber are trying to get their hands on control of the jobs, unions sometimes provide a bulwark against race discrimination.

This provides a new/old perspective on the much-denounced subject of teachers' unions. It's widely believed that if only we got rid of teachers unions, then we'd have superstar teachers in every inner city classroom. Yet, history suggests that we might wind up with worse teachers because rising politicians would try to fire the old white teachers and give their jobs to co-ethnics.

That's exactly what happened in the late 1960s in the black Ocean Hill neighborhood in New York City, when the NY school board temporarily decentralized. Black politicians immediately fired huge numbers of white teachers (mostly Jewish) and hired blacks. Albert Shanker, the union boss of the United Federation of Teachers, went on the warpath. A huge brouhaha ensued and Shanker eventually mostly won and got the white teachers re-installed. In "Sleeper" (1973), Woody Allen is told by the people of the future that his age had been obliterated when "a man named Albert Shanker got hold of a nuclear warhead."

That teachers unions and their seniority rules keep white teachers in jobs in minority-run cities is one of those phenomenon that nobody talks about but is staring you right in the face.

My published articles are archived at iSteve.com -- Steve Sailer

You can always count on Emily Bazelon ...

to be both boring and revealing at the same time. In Slate today, Bazelon writes:
Lead plaintiff Frank Ricci, on the other hand, framed his victory in terms that evoke America, the land of opportunity: "If you work hard, you can succeed in America, and all of these guys worked hard," he said on the steps of New Haven's federal courthouse. True. But only part of a larger truth. And in historical terms, a strange sort of rhetoric to hear a white person laying claim to.

Read that twice.

(As a commenter suggested, is it really strange that a guy named Frank Ricci is laying claim to the central message of the Collected Works of Sylvester Stallone?)

"Who? Whom?" That's all the mainstream media thinks about.

My published articles are archived at iSteve.com -- Steve Sailer

Justice Alito delivers the inside story on how DeStefano did Ricci down

The concurring opinion in the Ricci v. DeStefano case (won by Ricci on a 5-4 vote) by Justice Sam Alito, with Thomas and Scalia supporting, attacks the trustworthiness of Ginsburg's retelling of the Ricci story in her dissent.

The funny thing is how much juicier Alito's Supreme Court opinion is than that 5000 word article by Emily Bazelon in Slate that I dismantled on today's VDARE. The Slate article is full of disingenuous Pontius Pilateisms like:
No one we talked to can really imagine a way to resolve fairly who will get the promotions—which have been frozen now for six years. In this city at this moment, it's hard to imagine what fair would possibly look like.

Well, I know the names of five guys in Washington who did a pretty good job of imagining what fair could possibly look like. For the New Haven 20, after five and a half years of injustice, fair finally looks like this:
The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Alito first goes thru some judicial throat-clearing, which, by Supreme Court standards, is pretty much the equivalent of pointing at Madame Justice Ginsburg and chanting Liar, Liar, Pants on Fire:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent were accepted, affirmance of the decision below is untenable. ...

Now, here's the fun part of Alito's concurrence that demonstrates once again how what in theory is the Sacred Cause of Diversity turns out in practice to be just Old-School Tammany Hall Skullduggery. (Once again we see that political correctness, as in the Slate article, is just plain boring. The truth is always interesting because you can see the network of cause and effect connections. But when you're trying to pull the wool over everybody's eyes, all you can see is gray fuzz.)

As initially described by the dissent, ... the process by which the City reached the decision not to accept the test results was open, honest, serious, and deliberative. But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” ...

This admission finds ample support in the record. Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” ... On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.” ...

Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. ... “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” ... According to theMayor’s former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because “[h]e’s very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots.”...

In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.” ... In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’”... After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ... but he remained on the BFC and retained “a direct line to the mayor,”...

Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’” ... Dubois-Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. ... As discussed in further detail below, Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor....

On January 12, 2004, Tina Burgett (the director of the City’s Department of Human Resources) sent an e-mail toDubois-Walton to coordinate the City’s response to the test results. Burgett wanted to clarify that the City’s executive officials would meet “sans the Chief, and that once we had a better fix on the next steps we would meet with theMayor (possibly) and then the two Chiefs.” ... The “two Chiefs” are Fire Chief William Grant (who is white) and Assistant Fire Chief Ronald Dumas (who is African-American). Both chiefs believed that the test results should be certified. ... Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regard-ing the matter.” ...

The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven to meet with Dubois-Walton, Burgett, and Thomas Ude, the City’s corporate counsel. ... “Legel outlined the merits of the examination and why city officials should be confident in the validity of the results.”... But according to Legel, Dubois-Walton was “argumentative”and apparently had already made up her mind that the tests were “‘discriminatory.’” ... Again according to Legel, “[a] theme” of the meeting was “the political and racial overtones of what was going on in the City.” ... “Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results.” ...

On January 22, 2004, the Civil Service Board (CSB or Board) convened its first public meeting. Almost immediately, Rev. Kimber began to exert political pressure on the CSB. He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold him out of order three times. ... Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private....

Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, Burgett, and Ude. ... The message clearly indicated that the Mayor had made up his mind to oppose certification of the test results (but nevertheless wanted to conceal that fact from the public): “I wanted to make sure we are all on the same pagefor this meeting tomorrow. . . . [L]et’s remember, that these folks are not against certification yet. So we can’t go in and tell them that is our position; we have to deliberate and arrive there as the fairest and most cogent outcome.” ...

On February 5, 2004, the CSB convened its second public meeting. Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that
you would not put yourself in this type of position, a
political ramification that may come back upon you as
you sit on this [Board] and decide the future of a
department and the future of those who are being
promoted. ... “(APPLAUSE).” ...
One of the CSB members “t[ook] great offense” because he believed that Rev. Kimber “consider[ed] [him] a bigot because [his] face is white.” ... The offended CSB member eventually voted not to certify the test results. ...

One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. ... After some firefighters applauded in support of certifying the test results, “Lt. Tinney ex-claimed, ‘Listen to the Klansmen behind us.’”...

Tinney also has strong ties to the Mayor’s office. ... After learning that he had not scored well enough on the captain’s exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Tinney alleged that the white firefighters had cheated on their exams—an accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into its veracity. ... The allegation turned out to be baseless. ...

Dubois-Walton never retracted the cheating allegation, but she and other executive officials testified several times before the CSB. ...

As part of its effort to deflect attention from the specifics of the test, the City relied heavily on the testimony of Dr. Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business. Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” ... but Hornick did review and rely upon literature sent to him by Burgett to criticize Legel’s test. For example, Hornick “noted in the literature that [Burgett] sent that the test was not customized to the New Haven Fire Department.” ... The Chairman of the CSB immediately corrected Hornick. ... (“Actually, it was, Dr. Hornick”). ... Although Hornick again admitted that he had no knowledge about the actual test that Legel had developed and that the City had administered ... the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt]quoting him as a person that we should rely upon more than anybody else [to conclude that there] is a better way—a better mousetrap.” ... Dubois-Walton later admitted that the City rewarded Hornick for his testimony by hiring him to develop and administer an alternative test.

In a footnote, Alito points out:

The City’s heavy reliance on Hornick’s testimony makes the two [fire] chiefs’ silence all the more striking. ... While Hornick knew little or nothing about the tests he criticized, the two chiefs were involved “during the lengthy process that led to the devising of the administration of these exams,” ... including “collaborating with City officials on the extensive job analyses that were done,” “selection of the oral panelists,” and selection of “the proper content and subject matter of the exams" ...

Alito continues:
At some point prior to the CSB’s public meeting on March 18, 2004, the Mayor decided to use his executive authority to disregard the test results—even if the CSB ultimately voted to certify them. ... Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayor’s executive assistant, Burgett, and attorney Ude, attaching two alternative press releases. Id., at 457a. The first would be issued if the CSB voted not to certify the test results; the second would be issued (and would explain the Mayor’s invocation of his executive authority) if the CSB voted to certify the test results. ...

Soon after the CSB voted against certification, Mayor DeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.”

In practice, "Disparate Impact" turns out to be just a fancy name for the kind of 19th Century corruption that Civil Service testing was instituted to abolish in the first place.

My published articles are archived at iSteve.com -- Steve Sailer

Supreme Court rules 5-4 for Frank Ricci / against Sonia Sotomayor

Swing Justice Anthony Kennedy's majority opinion is fairly narrow, yet broader and braver than my prediction that he'd merely send it back down for retrial on the facts. It's a sizable defeat for the Obama Administration and their Supreme Court nominee.

Perhaps the most striking element of Kennedy's majority opinion is that he never portrays this as the hard, complicated case as the media have been telling everybody. The Supreme Court says: Look at the facts and you'll see this case is a slam dunk.

In effect, Kennedy's ruling implies that what happened to Frank Ricci was such a stinkbomb of blatant disparate treatment on the basis of race that the Supremes don't have to deal all that much yet with the fundamental issue that (as Scalia notes in his concurring opinion) banning Disparate Impact and banning Disparate Treatment are logically and empirically contradictory. Still, the majority casts a jaundiced eye on how much credence they'll give the Disparate Impact talisman that mere statistical disparity between races is prima facie evidence of illegal discrimination.

What we need now is a case that directly challenges the EEOC's Four-Fifths Rule. It's on rockier ground today than yesterday.

Kennedy says, in effect, you just can't do what Mayor DeStefano did to Frank Ricci -- yank the rug out from under him after he took the test because you didn't like the racial results -- at least not without a "strong-basis-in-evidence" that you'd lose a minority plaintiff's disparate impact discrimination lawsuit. And if the facts resemble the facts in New Haven, Kennedy announces, then this here Supreme Court says you won't lose that lawsuit; so don't throw Ricci's test results out. Capisce? (Warning: This here Supreme Court likely to be replaced by a more Obamaesque Supreme Court in not-too-distant future.)

As commenters on this site, have pointed out, the real question is why this modest and perfectly reasonable response to an egregious injustice was merely 5-4 rather than 9-0?

AP reports:
The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

"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," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them." [Madame Justice is being disingenuous -- New Haven has promoted "acting" fire captains and lieutenants of the politically preferred races.] Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

The Supreme Court ruled (my apologies for the semi-illegibility of the following -- the Supreme Court doesn't seem to know much about HTML yet -- UPDATE - I've cleaned the text up a lot, but not completely):
All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. ...

Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. ...

(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. ...

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, ... and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. ...

That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. ... Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. ...

(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. ...

(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions.

Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results ...

Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. ...

(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. ...

... reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

Reading through Kennedy's majority opinion, it appears to be a slapdown of Sotomayor's Second Circuit Court of Appeals, combined with some wishy-washiness to not rule out Disparate Impact in less obviously egregious situations. Kennedy opines:
Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the exami-nation results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” ... (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. ...

The District Court did not adhere to this principle, however. It held that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.”

And the Government [i.e., the Obama Administration] makes a similar argument in this Court. It contends that the “structure of Title VII belies any claim that an employer’s intent to comply with Title VII’s disparate-impact provisions constitutes prohibited discrimination on the basis of race.” ... But both of those statements turn upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective. Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action. ...

But Kennedy doesn't want to abolish "voluntary" quotas, so he shoots down Ricci's attorney's ambitious claim:
Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.

But Kennedy realizes Disparate Impact leads to de facto quotas and he doesn't want that or at least he doesn't want de facto quotas to be too obvious:
Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.” ... Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. ... The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.”

So, what magic formula does Kennedy come up with? I'm still reading, so I'll let you know...

All right, Kennedy's formula for balancing the bans on disparate treatment and disparate impact is called "strong-basis-in-evidence:"
The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the work-place of “practices that are fair in form, but discriminatory in operation.” ... But it has also prohibited employers from taking adverse employment actions “because of” race. ...

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. ... And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In other words, employers can't pull the rug out from under employees after they've taken the test, as happened to Ricci et al, unless the employer has a "strong-basis-in-evidence" for believing the they would lose a disparate impact lawsuit, which, according to the Supreme Court, New Haven did not.
For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.

The word "any" in that sentence sounds optimistic: in general, fighting disparate impact against NAMs and fighting disparate treatment against whites are inextricably opposite actions.

Kennedy spends some time explaining what his decision doesn't do:
Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.

Interestingly, Kennedy treats the EEOC's Four-Fifth's Rule as merely "a rule of thumb for the courts."

Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made.

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. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed ..., and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. ...

I can see how Ginsburg could be sore about this. Kennedy is being ingenuous by reading the 1991 Civil Rights Act naively. After all, the Democratic majority that passed the 1991 Civil Rights Act enshrining Griggs' disparate impact theory may have "declaimed" racial preferences in public, but the whole point of the legislation was to provide racial preferences by tipping the balance between Type I and Type II errors in favor of legally preferred groups.

Kennedy goes on:
The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, ... and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. ... We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.

... There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” ...

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

In other words, Judge Sotomayor, Welcome to the Big Leagues. Sorry about throwing that 98 mph fastball right under your chin. Too bad that your shiny new uniform got all covered with dirt when you hit the deck.

Justice Scalia points out the bigger issue in a concurring opinion:
JUSTICE SCALIA, concurring.

I join the Court’s opinion in full, but write separately too bserve that its resolution of this dispute merely post-pones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. ...

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. ... But if the Federal Government is prohibited from discriminating on the basis of race, ... then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal—discriminate on the basis of race. ... As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory....

To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. ...

The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

My suggestion for how to make peace between Disparate Impact and Equal Protection of the Laws:
Ecrasez I'infame!

So, we'll see have to wait and see just how spineless the GOP Senators really are when they get a chance to go after Sotomayor over Ricci v. DeStefano.

Once again, allow me to recommend that the GOP Senators in the Sotomayor hearings call Mayor DeStefano as a witness to beat up on him over the injustice he personally did to Frank Ricci, an injustice upheld, fortunately only temporarily, by Judge Sotomayor. If they are too sensitive to ask tough questions of the Wise Latina, they can ask them of the not so wise white guy.

My published articles are archived at iSteve.com -- Steve Sailer

June 28, 2009

Gown v. Town in New Haven

Here's a teaser from my new VDARE.com column on Monday's upcoming Ricci Supreme Court decision:
Last week, Slate ran a 5000 word article about the New Haven Fire Department, The Ladder, by senior editor Emily Bazelon and intern Nicole Allan. The article turns into an inadvertent reductio ad absurdum of the Sotomayorian conventional wisdom.

Bazelon’s ultimate objection to New Haven’s discarded 2003 testing process is that it wasn’t subjective and arbitrary enough to promote as many minorities as she’s like. She ends her article with a ringing call for a more random selection method that will produce less knowledgeable fire captains and lieutenants:
"The city could come up with a measure for who is qualified for the promotions, rather than who is somehow best. And then it could choose from that pool by lottery."

Bazelon apparently doesn’t know that lotteries are exactly what cities such as Chicago are already doing with the results of firefighter tests, in an attempt to comply with the Equal Employment Opportunity Commission’s "Four-Fifths Rule". This regulation puts the burden of proof in discrimination cases on employers when blacks aren’t hired or promoted at least 80 percent as often as whites. ...

In 2006, the new Chicago hiring test passed all but the bottom 15 percent of the folks who walked in off the street wanting jobs as firefighters. And then, just as Bazelon recommends for New Haven, the Chicago city government picked "randomly" from the top 85 percent—the crème de la crème of the Disparate Impact Age.

Why did Chicago have to go so low? ...

Not until you cut the IQ minimum down to 74 would the EEOC be truly happy: 77 percent of blacks and 96 percent of whites pass. Exactly Four-Fifths!

But, seriously, what’s the point of even giving a test so easy that 96 percent of white people can pass? White people aren’t so smart that somebody at the 5th percentile of the white bell curve is going to make an adequate firefighter.

Bazelon’s lotteries are an incredibly stupid idea because cities end up hiring incredibly stupid people of all races. ...

Bazelon is much exercised by the racial injustice inherent in white firefighters knowing more about how to do their jobs. She says:
"Is this the best way to choose the leaders of a municipal fire department—the best memorizers win?"

Worse, the white firemen are unjustly learning more about fire fighting because they care more about fighting fires. Bazelon continues:
"As one Hispanic quoted anonymously by the New Haven Independent put it, the test favored ‘fire buffs’—guys who read fire-suppression manuals on their downtime …"

The white firemen also are advantaged, Bazelon says, because they tend
"… to come from families in which firefighting is a legacy. … Frank Ricci has an uncle and two brothers who are firefighters. He studied fire science at college."

I looked up "Emily Bazelon" on Wikipedia (accessed 16.59 ET, June 28 2009) and discovered that while she’s very bright, she’s not exactly the most self-aware person. When read in light of her biography, her Slate article about privileged white firemen becomes an amusing epitome of unthinking Gown v. Town prejudice in New Haven.

Wikipedia tells us:
"[Bazelon] graduated from Yale College in 1993 and from Yale Law School in 2000. ... Bazelon is a Senior Research Scholar in Law and Truman Capote Fellow for Creative Writing and Law at Yale Law School."

You might think that Bazelon would be better qualified to offer advice on admissions and promotions to the LSAT-obsessed Yale Law School rather than to the New Haven Fire Department. By Bazelon’s logic, Yale Law School should hire by lottery. Perhaps—just to get the ball rolling—she could publicly offer to give up her position at Yale Law School to some randomly chosen person?

Moreover, this legal writer’s concern about the advantages Frank Ricci garnered by being related to firemen seems a little ironic in light of this Wikipedia line:
"She is the granddaughter of Judge David L. Bazelon and cousin of feminist Betty Friedan."

This legal journalist’s grandfather, David Bazelon, was the most powerful judge in America not on the Supreme Court when he served from 1962-1978 as Chief Judge of the U.S. Court of Appeals for the District of Columbia.

Needless to say, I’m not implying that Emily Bazelon’s career as a writer on legal affairs has depended upon nepotism.

Rather, I’m pointing out that a family developing and passing on expertise in a particular field—whether the Riccis in firefighting or the Bazelons-Friedans in law and punditry—is a good thing for society in general, because expertise is always in short supply.

Now tell me: why should we have one standard of fairness for Frank Ricci and another for Emily Bazelon?

Read the whole thing here.

My published articles are archived at iSteve.com -- Steve Sailer

Fire Dept. Diversity Promotions, Chicago-Style

In VDARE.com on Sunday evening, I'll have a column pointing out the multiple ironies in Slate's 5000 word article last week deploring the excessively objective and lamentably non-random 2003 New Haven fire department test (since discarded, with the approval of Sonia Sotomayor) on which Frank Ricci earned a promotion.

In the meantime, here's a great John Kass column from the Chicago Tribune on February 14, 2009 (or as the day is known in Chicago history, St. Valentine's Day) that's highly relevant to the Ricci case. The background is that in the 1990s, Chicago spent a fortune on devising the perfect unbiased police and fire promotion civil service tests. When the test creation process was complete, everybody in Chicago agreed that, finally, a non-discriminatory test had been perfected. Of course, it turned out that whites ended up earning 95% of the scores high enough for promotion, so a political firestorm ensued. For a while, Mayor Richard M. Daley stoutly defended a test on which no expense had been spared, but eventually he caved in and announced that some of the top scorers would get promotions but other worthies would get promotions too, based on "merit" in order to bring "diversity" to leadership positions. This "merit" system was extended to firefighters.

A much more sophisticated system than the simple-minded one under which Frank Ricci earned a promotion, no? So much more thoughtful and nuanced! Who cares about Civil Service laws against political hackery and nepotism when the concept of diversity is at stake?
In what squeaky-clean city would a fire department lieutenant known as “Matches,” convicted of multiple arsons—including one sparked at an elementary school—feel that he’s still entitled to his taxpayer-funded pension of $50,000 per year?

Oh, don’t pretend you don’t know the city.

It’s Chicago, which must be the epicenter of political reform now that Mayor Richard Daley’s guys are running the White House and the U.S. Census, and are about to wet the beaks of federal road and bridge contractors.

It’s also the same city where you’ll need 28 quarters in your pocket just to park for two hours at a metered space, thanks to Daley’s new parking deal. But perhaps the only Chicagoan with pockets thick enough for that many quarters is none other than the famous John “Quarters” Boyle himself.

Years ago, Quarters was convicted of stealing millions of dollars in quarters from the state toll roads. After his punishment, he received a cushy city job. Daley told me politics had nothing to do with it, but all the while Quarters was getting out the vote with The Coalition for Better Government, a pro-Daley patronage army of payroll hacks, tough guys and felons.

Sadly, Quarters is now back in federal prison, this time for taking more than $200,000 in bribes in the mayor’s Hired Truck scandal. But Quarters is keeping his mouth shut. And as he sits tight, his brother wants a pension.

Oops! I’m such a chumbolone that I forgot an important detail: The convicted bribe-taker John “Quarters” Boyle and the fire lieutenant/arsonist Jeffrey “Matches” Boyle are brothers. That’s the Chicago Way.

In 2006, Matches Boyle was sentenced to six years behind bars after pleading guilty to setting multiple fires on the Northwest Side and in neighboring Park Ridge. Matches pleaded guilty to eight fires, but admitted to setting more than 20 others.

What’s fascinating—since Chicago is the epicenter of reform—is that while he was busy as an arsonist, he was also busy applying for a promotion to fire lieutenant.

There were 200 more-qualified firefighters ahead of him on the list, but Matches magically jumped ahead of all of them and received what Daley’s City Hall calls a “merit” promotion in 2002. If that’s not reform, what is?

Here's a picture of Matches Boyle, beneficiary of one of Mayor Daley's "merit" promotions that were instituted in the name of Diversity. As you may have noticed, however, Mr. Boyle is a Person of Pink. (In fact, 30% of Chicago's "merit" promotions went to whites.) But Matches does come from a fine Democratic Machine family, and, in the final analysis, isn't that what really counts?
Matches served only one year and nine months of his six-year stint. And now, despite losing his job and burning the words “convicted arsonist” onto his résumé, he’s demanding another miracle: He wants the Firemen’s Annuity & Benefit Fund of Chicago—the group that handles the pensions—to fork over his $50K per year. His rationale?

According to his lawsuit against the fund filed in Cook County court last month, Matches insists his convictions had nothing to do with his job as a fire lieutenant. Why? He didn’t set the fires while on duty. He started them on his free time. ...

Matches’ crime spree came to an end after the 2005 Super Bowl, when Matches, drunk and upset over losing $3,000 on a football bet, decided to make himself feel better by setting fire to Brandy’s Restaurant on Harlem Avenue. Local police recognized him from a security tape, and notified detectives from the Chicago Police Bomb and Arson Unit.

The detectives picked up Matches, and according to the police report, they asked him if he liked movies. Matches said he sure did like movies, so the detective asked if he’d “be interested in viewing a video of an arson in progress.”

They rolled tape showing a man pushing a Dumpster, with contents blazing, up against the restaurant. The firebug bore a unique resemblance to Matches, which caused Matches to bow his head and issue the immortal words: “OK, you’ve got me. That’s me.”

According to the reports, Matches told police that he had a drinking problem, was upset over bad football bets and his father’s death, and that journalists were writing mean things about his brother, Quarters. (I’m just thankful he didn’t burn down the Tribune Tower on deadline.)

According to transcripts of a benefit board meeting last year, Matches was asked what he learned as a Chicago firefighter about how different materials ignite, and at what temperatures.

The hotter it got, the more it would burn,” Matches said simply.

Consider how much more socially uplifting is the story of Matches' merit promotion compared to those of nerdy "fire buffs" like Frank Ricci who spent all those hours poring over fire fighting manuals so that they could "earn" promotions based on disparately impacting Civil Service tests of objective knowledge.

My published articles are archived at iSteve.com -- Steve Sailer

June 27, 2009

It's time for your Ricci case predictions

Supposedly, the Supreme Court will announce its decision in Ricci v. DeStefano on Monday.

What are your predictions?

Also, feel free to make predictions about how the Sotomayor hearings will play out.

And if you feel an urgent need to refresh yourself on all the wisdom I've been dispensing on the topics of "Ricci" or "Sotomayor," just click the Labels below.

My published articles are archived at iSteve.com -- Steve Sailer

June 18, 2009

A tactical suggestion for the Sotomayor hearings

When it comes to racial preferences, Barack Obama and Sonia Sotomayor are ideological twins, although most Americans don't realize it yet. Unlike the master politician, however, Sotomayor tends to rub people the wrong way. Still, the Republican Senators are highly unlikely to be able to stop Sotomayor. And it's not clear that they should want to, since once on the Court, the mediocre and abrasive Sotomayor is unlikely to evolve into a William Brennan-like master backstage manipulator of the other Justices.

Still, a lengthy hearing over Sotomayor would be the best opportunity for the GOP to begin the process of enlightening the public that Obama isn't the post-racial President that David Axelrod has spun him as. Clearly, the New Haven firefighter reverse discrimination case of Ricci v. DeStefano should be central to the hearings.

Yet, old-fashioned chivalry and post-modern sensitivity both dictate that a bunch of white male conservative Senators like Jeff Sessions can't be seen asking too many probing questions of a lady / minority. The GOP needs a bad guy to pound in these hearings, but Judge Sotomayor isn't a guy.

So, the GOP Senators should subpeona a witness on the Ricci v. DeStefano case. They should subpeona and then roast alive on the witness stand the defendant, beady-eyed New Haven mayor John DeStefano (seen here), who engineered cheating Ricci and company out of their promotions. This will associate DeStefano's petty political machinations to please his main black supporter with Sotomayor, Obama, and racial preference supporters in general.

For examples of the kind of questions they could flail DeStefano with, just refer to the Supreme Court's oral questioning in the case. For example, Mayor DeStefano's city attorney claimed that the city had strong evidence for discarding the test as invalid after finding out the results by race. But Justice Samuel Alito pointed out the preposterousness of that claim in a scalding rhetorical question:
"[The city] chose the company that framed the test, and then as soon as it saw the results, it decided it wasn't going to go forward with the promotions. The company offered to validate the test. The City refused to pay for that, even though that was part of its contract with the company. And all it has is this testimony by a competitor, Mr. Hornick, who said—who hadn't seen the test, and he said, I could do a better test—you should make the promotions based on this, but I could give you—I could draw up a better test, and by the way, here's my business card if you want to hire me in the future.

“How's that a strong basis in the evidence?"

This could be fun.

My published articles are archived at iSteve.com -- Steve Sailer

June 15, 2009

The Testing Industry Gold Rush

One of the odder phenomenon is that as political correctness grows, so does that most politically incorrect of businesses, standardized testing. You might think that standardized testing would be a stagnant industry, what with the fact that it would appear to be the classic mature industry -- there haven't been fundamental innovations in testing since the middle of the last century -- and that the results it comes up with are viewed with deep suspicion by the courts and the media.

And yet, it's booming.

For example, when researching the Ricci case, I stumbled upon nine different firms that make up firefighters tests. And they are constantly being paid large amounts of money to make up customized new tests -- reportedly, New Haven paid $100,000 for the test that Frank Ricci took -- even though a national test would work fine.

Similarly, the passage of the Kennedy-Bush No Child Left Behind act led to the development of a huge number of new school achievement tests by each state. It was important to have new tests because the NCLB's mandate that federal aid to states would depend upon annual progress toward making every single student in the state above average by 2014 on the state's test could only be accomplished by massive fraud.

A frequent pattern was for a state to introduce a new test and make it initially extremely hard. When the first years' results were announced, the governor would declare an all-hands-on-deck educational crisis in the state. Then, the state would make the scoring progressively easier over the years, and the politicians would congratulate each other on how much they've improved schooling in just a few years. Unfortunately, on the various national tests such as the NAEP or the Iowa test, nothing much would change.

Now, the Administration of the husband of the test-phobic Michelle Obama is set to pour vast new amounts of taxpayer largess on this little industry to create new national tests to replace the state tests mandated by the NCLB, even though plenty of national tests have long existed. (I took the Iowa Test in California in 1966, for example.)

The AP reports:
U.S. to Spend Up to $350 Million for Uniform Tests in Reading, Math

RALEIGH, N.C., June 14 -- The federal government will spend up to $350 million to help states developing national standards for reading and math, Education Secretary Arne Duncan announced Sunday.

In the current patchwork of benchmarks across the nation, students and schools considered failing in one state might get passing grades in another. The Obama administration is urging states to replace their standards for student achievement with a common set.

Every state except Alaska, South Carolina, Missouri and Texas has signed on to the concept, but getting them to adopt whatever emerges as the national benchmark will be politically difficult.

Duncan said the government's spending will go for the development of tests that would assess those new standards.

The money will come from the Education Department's $5 billion fund to reward states that adopt innovations the Obama administration supports. ...

Any tests developed for the new standards would probably replace existing ones.

Asked to explain the money's focus on developing more tests, Duncan said developing the standards themselves would be relatively inexpensive.

Developing assessments, by contrast, is a "very heavy lift financially," he said, expressing concern that the project could stall without federal backing.

"Having real high standards is important, but behind that, I think in this country we have too many bad tests," Duncan said. "If we're going to have world-class international standards, we need to have world-class evaluations behind them."

So, what's the fundamental reason for why the government has been spending so much money on new tests in this decade? Because the politicians don't like the results, especially the continuing existence of racial gaps. They're behaving like a fat man who keeps buying more and more expensive bathroom scales because he doesn't like what the old scale tells him about his weight.

My published articles are archived at iSteve.com -- Steve Sailer

June 11, 2009

Logic and Luck

The root of Obama's Sotomayor Problem is this: Having decided for political reasons that he wanted a female Hispanic who was liberal on affirmative action and not too old and had plausible credentials, Obama then ran into a reality that is unpleasant but was logically inevitable: There just aren't that many Wise Latinas (whether self-proclaimed or not) out there. After all, if there were, then they wouldn't need affirmative action to avoid the "cultural biases" that cause disparate impact, now would they? If there were lots and lots of very smart Latinas, then they wouldn't be an aggrieved interest group demanding that the Supreme Court continue to protect their special legal privileges.

So, that left Obama with exactly one name: Sonia Sotomayor, Esq.

But, it turns out, she doesn't have the kind of oily personality that allowed Obama to slip-slide through a 20 month Presidential campaign with only a few brief snags during the Rev. Wright contretemps. Nor, does being a Puerto Rican give her the kind of anti-skepticism race card Kryptonite that Obama's claim to being an African American gave him. Finally, in the worst bit of bad luck, she had gotten the Ricci case, which puts the issue of affirmative action on the kind of personality basis that average Americans can understand.

Of course, I presume, she'll wind up on the Supreme Court anyway, but it has been a bit of an eye-opener for the naive.

My published articles are archived at iSteve.com -- Steve Sailer

June 10, 2009

Sotomayor on affirmative action

From the New York Times:
Judge Sonia Sotomayor once described herself as “a product of affirmative action” who was admitted to two Ivy League schools despite scoring lower on standardized tests than many classmates, which she attributed to “cultural biases” that are “built into testing.”

On another occasion, she aligned with conservatives who take a limited view of when international law can be enforced in American courts. But she criticized conservative objections to recent Supreme Court rulings that mention foreign law as being based on a “misunderstanding.”

Those comments were among a trove of videos dating back nearly 25 years that shed new light on Judge Sotomayor’s views. She provided the videos to the Senate Judiciary Committee last week as it prepares for her Supreme Court confirmation hearing next month.

The clips include lengthy remarks about her experiences as an “affirmative action baby” whose lower test scores were overlooked by admissions committees at Princeton University and Yale Law School because, she said, she is Hispanic and had grown up in poor circumstances.

“If we had gone through the traditional numbers route of those institutions, it would have been highly questionable if I would have been accepted,” she said on a panel of three female judges from New York who were discussing women in the judiciary. The video is dated “early 1990s” in Senate records.

Her comments came in the context of explaining why she thought it was “critical that we promote diversity” by appointing more women and members of minorities as judges, and they provoked objections among other panelists who pointed out that she had graduated summa cum laude from Princeton and been an editor on Yale’s law journal.

But Judge Sotomayor insisted that her test scores were sub-par — “though not so far off the mark that I wasn’t able to succeed at those institutions.” Her scores have not been made public.

“With my academic achievement in high school, I was accepted rather readily at Princeton and equally as fast at Yale, but my test scores were not comparable to that of my classmates,” she said. “And that’s been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action to try to balance out those effects.”

Judge Sotomayor’s approach to affirmative action has been the subject of intense scrutiny. Conservatives have criticized her remarks in speeches that her personal experiences will influence her judging, and they have focused on her vote to uphold a decision by New Haven to throw out results from a firefighters’ exam because not enough members of minorities scored well.

In the program, Judge Sotomayor also rejected the proposition that minorities must become advocates of “selection by merit alone.” She said diversity improved the legal system — like having a Hispanic judge in a case where a litigant and his family is Hispanic, and who can translate what is happening into Spanish.

“Since I have difficulty defining merit and what merit alone means, and in any context, whether it’s judicial or otherwise, I accept that different experiences in and of itself, bring merit to the system,” she said, adding, “I think it brings to the system more of a sense of fairness when these litigants see people like myself on the bench.”

Judge Sotomayor also mentioned her personal involvement in challenging testing in a 1994 interview. Reflecting on her 12 years on the board of the Puerto Rican Legal Defense Fund before she became a judge, she recalled helping change its policy focus from voting rights and bilingual education to economic issues, like “cases attacking civil service testing and issues of union admissions.”

So, Judge Sotomayor appears to be basically a hard-working grind. Obama wanted a liberal female Hispanic, so he had to take what he could get. There just aren't that many Wise Latinas out there (if there were, they wouldn't need affirmative action to avoid disparate impact), so Obama got stuck with the Second Coming of Harriet Miers.

But it's not as if brilliance is a necessity for being on the Supreme Court. It's more helpful lower down the hierarchy where you have to explain yourself well in the hopes that the Supreme Court will like your reasoning. Once you are a Supreme, however, you don't have to think cogently, you just have to vote. Sandra Day O'Connor's majority ruling in the Grutter affirmative action case is inane, but, so what? O'Connor's maunderings are the law of the land.

At age 54, Sotomayor's undoubtedly got more on the ball cognitively than 89-year-old liberal Justice John Paul Stevens. His opinion in Johnson v. California showed him to be an elderly fool. But so what if Stevens is 89? He's on the Supreme Court, ain't he? Stevens' vote counts just as much as that of somebody not in his dotage.

Obviously, Sotomayor was no more able to vote objectively on Ricci than Michelle Obama would have been. Sotomayor's ego, personal and ethnic, is tied up in her remaining convinced, against the overwhelming weight of evidence, that there must be "cultural biases built into testing." If not, how else could tests have disparate impact? (The only other logical possibility would be too horrible to contemplate.)

But once you make it on the Supreme Court, little things like bias and brains are insignificant. When you are a Supreme, we're talking Who? Whom? time now.

My published articles are archived at iSteve.com -- Steve Sailer

June 7, 2009

In response to Nicholas Kristof

UPDATE: Greg Cochran says he's offered to make a Julian Simon-Paul Ehrlich-style bet with Nicholas Kristof over whether the ideas offered in Richard Nisbett's book Intelligence and How to Get It will prove true or not. Greg would take the "Not" side.

Since a lot of people are visiting from Nicholas D. Kristof's column in the New York Times, here's an excerpt from my new VDARE.com column that is now posted:
For example, Kristof punditized today in the Times:
Rising Above I.Q.

In the mosaic of America, three groups that have been unusually successful are Asian-Americans, Jews and West Indian blacks — and in that there may be some lessons for the rest of us. … These three groups may help debunk the myth of success as a simple product of intrinsic intellect, for they represent three different races and histories.

Who actually advocates a "myth of success as a simple product of intrinsic intellect"?

I don’t even say that!

Everybody knows that a strong work ethic matters.

The controversial questions are about whether you should be allowed to even mention the existing cognitive differences between groups when discussing, say, the Ricci case. And if you are allowed to bring up the racial gaps in intelligence, must we then all assume for purposes of public policy that they can somehow be made to quickly vanish? Or will we get kicked to the curb like Nobel laureate James D. Watson for assuming that they will be around for at least a fairly long time?

Of course, Kristof’s emphasis upon the importance of hard work would logically suggest that Non-Asian Minorities (NAMs) are achieving less on average in school and the workplace because they aren't working hard enough. But Kristof, who presumably likes his job at the NYT and wishes to keep it, won't say that, so he ends up repeating by rote irrelevant talking points about spending more on education:
What’s the policy lesson from these three success stories?

It’s that the most decisive weapons in the war on poverty aren’t transfer payments but education, education, education. For at-risk households, that starts with social workers making visits to encourage such basic practices as talking to children.

Exactly how do these conclusions about policy follow from Kristof’s premises about Asians, West Indians, and Jews?

Did the Czar send social workers around to encourage Jewish mothers to talk to their children?

Much more in response to Kristof at VDARE.com.

And, if newcomers are interested in what I have to say about these controversies, in 2007 I put together Frequently Asked Question lists about IQ and race.

My published articles are archived at iSteve.com -- Steve Sailer