Monday, July 13, 2009

Sotomayor Ruling: Understanding the Ricci v. DeStefano Case

By Professor Sherrilyn Ifill, Professor at the University of Maryland School of Law
Ricci vs DeStefano

It seems like a simple case. The New Haven Fire Department conducted an examination for applicants seeking promotion to captain and lieutenant. No black test takers made the cut, so the city, fearing it would run afoul of employment antidiscrimination laws, scuttled the test. To many, this just sounds fundamentally unfair.

But the Ricci case is not that simple. And that’s the problem with conversations about affirmative action. You say “affirmative action,” and people think they know what you’re talking about. They threw out the test? That’s unfair to the white applicants. Why couldn’t the black applicants just pass the test? Who wants a firefighter in a command position who can’t pass the test? Won’t this just stigmatize black firefighters?

First, the issue before the Supreme Court is whether New Haven officials violated the constitutional rights of Frank Ricci, a white firefighter who took and passed the promotion exam, when the city’s Civil Service Board failed to certify the exam. Why did the board refuse to certify it? Questions about the test were raised in part because the company that created the test failed to follow several practices regarded as “standard” among experts providing tests to fire departments. One of those is the submission of the test to a process that determines a relevant cutoff for a passing score. The test developer simply skipped this step. Nor was the test submitted to fire experts in New Haven to ensure its relevance to the particular conditions and realities for firefighters there. Thus, when the racially disparate results from the test differed substantially from the results of previous tests conducted by the New Haven Fire Department, alarm bells went off. The matter was submitted to the Civil Service Board. After hearing from the public and outside experts at five hearings, the board split 2-2 on whether to certify the test (the board’s fifth member, an African American, did not participate in any of the decisions).
Second, this case cannot be examined outside the very powerful historical context of race in urban fire departments in the United States and in this particular fire department in New Haven. As the NAACP Legal Defense Fund argued in its amicus brief to the court, Title VII of the Civil Rights Act of 1964 was amended in 1972 to include state and municipal governments precisely because of widespread discrimination in public sector employment. Fire departments have been among the most resistant municipal enclaves to integrate. It has been surmised that because firefighters essentially live together in the same space, whites have been especially resistant to integrating this workspace. Unfortunately, fire departments have been the sites of some of the most odious incidents of racial discrimination. As documented by the LDF, even in supposedly desegregated firehouses in Washington, D.C., in the late 1960s and early ’70s, the beds, dishes and eating utensils of black firefighters in some firehouses were marked “C” for “Colored.” Segregated firehouses were maintained in jurisdictions from San Francisco to Memphis through the 1970s. And this is not just a relic of our past. The effort to address discrimination in fire departments is part of the ongoing work of civil rights organizations and the Department of Justice. In one compelling account, Legal Defense Fund lawyers revealed that in the Cleveland Fire Department, black firefighters were assigned to a battalion that was known as “Monkey Island.” In 2004.
Getting employed at all as a firefighter has been a challenge for black applicants. After the application of Title VII to municipal employers in 1972, blacks were kept from employment as firefighters and promotion to officer positions through changes in prerequisites for employment designed to disproportionately affect blacks; the use of quotas as a bar to black promotion; and, of course, the use of tightly held information about job openings and promotion opportunities.
New Haven has a particular history of discrimination in its fire department. Black firefighters and applicants have successfully sued the department for racial discrimination in hiring or promotion numerous times, most recently in 2004. Although New Haven has made strides in the hiring of black firefighters, the promotion of black officers continues to be a problem. In 2007, although a little over 30 percent of entry-level positions in the department were filled by blacks, African Americans held only 15 percent of supervisory positions.

In fact, the requirement of high school diploma was imposed in some jurisdictions only after the passage of Title VII, precisely to keep black applicants out. But access to these jobs are critical for working-class black people and their families. To the extent that there are sizable numbers of blacks in these jobs in many of our cites today is due, in large measure, to successful affirmative action lawsuits or voluntary affirmative action measures.
Some simply see this case as being about Frank Ricci and his right to a fair and transparent process for promotion. It’s wort
h pointing out that even had the test been certified, it’s not certain by any means that Ricci would have received a promotion. The names of those who pass the test are placed on a list that is submitted to the Board of Fire Commissioners. Lieutenants and captains are selected from among the names on the list.

Given all of the departures from standard practices in the creation of the test, and the fact that its results showed racial differentials that were inexplicably more pronounced than in prior years, New Haven’s Civil Service Board was justified in its split decision on certification.

For whatever else it is, Ricci isn’t a referendum about affirmative action. This case is about a particular city, a particular fire department and a particular test.

In fact, in light of its particular history, the New Haven Fire Department should strive to adopt a test that is valid and objectively sound and that provides an evaluation of the relevant qualifications for candidates seeking important supervisory jobs. This new test should not be one that tips the scales in favor of minorities, but one that is consistent with standard testing practices and can withstand scrutiny by industry testing experts. That’s something that even Chris Matthews could agree with.


ultima said...

You left out the most important part of this story, the reasoning of the justices in the majority as well as some in the minority on this decision. I have not studied them in detail but it seems to me that one of the salient issues was the failure of the city to do its job before the fact not after the results were in and they were afraid of being sued again.

There is something to be said for the minimum education of a high school diploma. It not only assures that the applicants have the minimum intelligence necessary to understand the technical aspects of fire fighting and fire fighting equipment but also the nature of command if they aspire to higher ranks. You don't throw out the results after the fact simply because you don't like the results. If New Haven has been sued many times before what was the City Council thinking in allowing this test to go forward without proper vetting. They were either mightily stupid or were, in fact, intending to disqualify minorities. I tend to lean toward the former given the history of lawsuits.

For almost every job there is a minimum educational qualification. A high school diploma is the usual minimum. For higher rank one should be able to expect even more. At the captain and higher levels one should have some greater education even if it is at the junior college level. There is more to fire fighting than just muscle and brawn. someone has to know how best to attack various kinds of fires, how to look for signs of arson, and last but not least how to get along with others and how to command men in a hazardous occupation. The message for the minorities should be: stay in school, apply yourself, learn as much as you can, and continue your education throughout your life, don't expect to get a job just because of your color. That's what most of us do.

Dee said...

There is no documentation that says the Black Firefighters did not complete high school. In fact, to qualify for basic Firefighter, you had to have your high school completion certificate.

The issue before the court was:
1. Was the Test Valid? (the company did not follow the standard operating practices)
2. If it was not valid, should the results be upheld.

There it is. Plain and Simple.

Dee said...

So now, to your point, the next question is:

If the test was held invalid then

1. Why didn't the city do its job in correcting the problems before the test?

a. if a black man had passed, they would have overlooked the problems with the test.

b. if no black passed the test then they had the problem with the test as an excuse to fall back on to throw the test results out.

c. Plus, with their history of abuses discriminating against blacks, by sticking with a or b, then they save themselves from law suits fr blacks or whites.

Now if you assume my assumptions are correct, shouldn't the court decide to throw out the test all together? or should it allow the test results to proceed? Even if the test results were allowed, Ricci was not top scorer and there is no guarantee he would have been selected for promotion anyway. The court cannot prove there was purposeful deception by the city. What should they have done?

I believe Sotomayor and the panel were correct in throwing the test results out.

Dee said...

The larger question is:

Why is there a history of abuse, discrimination and racism in Fire Departments across the U.S.? Why is there racism in the U.S.?

Look at the examples provided.

The black firefighters sued to stop the discrimination.

Ricci and others believed reverse discrimination occurred, so they sued.

Just a note here: Ricci has dyslexia and in 1995 he sued the city because he was not hired as a firefighter. He dropped the suit when he was hired in 1997.

Ricci filed suit on this case in 2004.

Ricci filed another lawsuit in 2006 accusing his Fire dept. about unsafe working conditions. That suit was thrown out.

Some say Ricci is "sue happy."

And again, even with the test being ruled valid, there is nothing that says Ricci would have been or will be promoted. He was not even the highest scorer. I think that went to the Latino that passed.

Vicente Duque said...

Young Republicans : The Triumph of Madness, Paranoia, Vulgarity and Aggressivity - The New Ice Age of Young Republicans

The Young Republicans elect a Lady that represents Racism and Imbecility

Huffington Post
Michael Rowe
July 12, 2009

The New Ice Age of the Young Republicans

Some excerpts :

The election of 38-year old Audra Shay of Louisiana to the chairmanship of the Young Republican National Federation on Saturday in Indianapolis might have gone practically unnoticed, had it not been for revelations by John Avlon, writing in The Daily Beast, that Shay had tacitly endorsed a virulently racist post about U.S. President Barack Obama on her Facebook page.

When two of her other friends--including Sean L. Conner, chairman of the D.C. Young Republicans--complained about the racist language on Shay's Facebook thread, Shay responded, not by unfriending the author of the "mad coon" comment, but by unfriending the two who complained.

In his two articles, Avlon reveals a disturbing pattern of similar viewpoints expressed by Shay in previous Facebook posts, larded with misspellings, and with syntax that would embarrass a marginally-educated 16-year old, including one from October 2008 where she employs a lynching motif, suggesting "Obama in a noose" as a Halloween decoration, defending it as "freedome [sic] of speech," and that "no one in Atlanta would mind."

In spite of Shay's attempts to sanitize the 2009 "mad coon" exchange by deleting the posts and issuing a statement to the effect that racist slurs did not represent her position as a candidate for the chairmanship of the Young Republicans--and would not be tolerated on her Facebook wall--screenshots had already been taken of the post, and of her response, Avlon reported.

Be that as it may, apparently it worked: the voting body of the Young Republican National Federation was of a similar mindset, and on Saturday they elected Audra Shay--and her values--to represent them.

Having long relied on the so-called Republican "base" (and still reeling from the stinging November defeat) the GOP appears to be unable--or unwilling--to put the genie of religion-based social intolerance, and racism, back in the bottle by calling it out, and distancing themselves from it in unambiguous terms once and for all.

Instead, the smell issuing from the GOP's lack of leadership and direction is attracting the subterranean element of the "base" like blowflies to a carcass by the side of the highway.

For better or for worse, the Young Republican National Federation is now headed by a 38-year old, spelling-challenged "event planner" who finds references to America's 44th (and first African American) president as a "mad coon" to be an occasion for great merriment.

Vicente Duque

ultima said...

Dee wrote, "In fact, the requirement of high school diploma was imposed in some jurisdictions only after the passage of Title VII, precisely to keep black applicants out."

I understood this to mean that some Blacks were excluded because of the lack of a high school diploma. At least we can agree that this is a legitimate requirement for all applicants.

ultima said...

"The black firefighters sued to stop the discrimination.

Ricci and others believed reverse discrimination occurred, so they sued."

Both were right!

ultima said...

Sure the test should be thrown out if it is objectively invalid but not after the fact. The Blacks should sue the test people as their appropriate recourse.

Are you opposed to dylexics if they can pass the test and do the job?

ultima said...

"a. if a black man had passed, they would have overlooked the problems with the test.

b. if no black passed the test then they had the problem with the test as an excuse to fall back on to throw the test results out.

c. Plus, with their history of abuses discriminating against blacks, by sticking with a or b, then they save themselves from law suits fr blacks or whites."

Pretty dumb reasoning on their part I would say. Why not vet the test with impeccable fire experts and others before the fact so they have a positive defence from either party?

Vicente Duque said...

Videos of Rachel Maddow, laughing at "Judge Cabradas" and "Judge Cabrones" of "Little Angel from Heaven" Senator Jeff Sessions

"Judge Cabradas" and "Judge Cabrones" in the deceiving mouth of Super Racist Senator Judge Sessions

The Devil Sessions feigning to be a Little Angel from Heaven. And accusing Minorities of Racism, the Religion in which he is the best practicioner, bigot and fanatic.

Rachel Maddow and Dahlia Lithwick of laughing at the Imbecility and Hypocrisy of some Senate Republicans

July 15, 2009
Rachel Maddow Show (7/14/09)

GOP Senate Showcase at Sotomayor Confirmation Hearing

In YouTube or in my site MILENIALS.COM where I am gathering lots of Serious Videos and Articles but also the best comedians, songs, jokes, trivia, and the BEST LAUGHS about Sonia Sotomayor's Confirmation Hearings :

Vicente Duque

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