Justice Ginsburg and Justice Alito had a little tiff over Ricci.

[usregimechange]

Justice Ginsburg notes Alito's absurd leap in logic:

In any event, Justice Alito’s analysis contains a more fundamental flaw: It equates political considerations with unlawful discrimination. As Justice Alito sees it, if the mayor and his staff were motivated by their desire “to placate a … racial constituency,” ante, at 3, then they engaged in unlawful discrimination against petitioners. But Justice Alito fails to ask a vital question: “

lacate” how? That political officials would have politics in mind is hardly extraordinary, and there are many ways in which a politician can attempt to win over a constituency—including a racial constituency—without engaging in unlawful discrimination. As courts have recognized, “

oliticians routinely respond to bad press … , but it is not a violation of Title VII to take advantage of a situation to gain political favor.” Henry v. Jones, 507 F. 3d 558, 567 (CA7 2007).

http://www.law.cornell.edu/supct/html/07-1428.ZD.html


Alito begins his concurring opinion going after Ginsburg:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “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.

http://www.law.cornell.edu/supct/html/07-1428.ZC1.html

End result:

More undoing of the Civil Right Act.

[CTyankee]

1. This is interesting. DeStefano had a notorious relationship with a self styled civil rights leader

in the city, also a convicted felon (he scammed money from a poor widow who entrusted some money to him to pay for her funeral expenses; he took it and paid in cash for his dtr's private school tuition!). This guy was bullying the mayor about the political ramifications of his decision on what to do with the tests. It was an unholy relationship to say the least.

The mayor of New Haven is totally at fault for this decision, make no mistake. He had the chance to do a fairer test and did not. I am so appalled I am sick over it...

[Eric J in MN]

2. What do you mean by "He had the chance to do a fairer test"? NT

NT

[CTyankee]

5. There are better tests out there, ones that have proven to yield more racially diverse outcomes.

Bridgeport CT is one and that city has increased its percentage of black leaders w/i its FD. New Haven is woefully behind the times using a pencil and paper test for such a large percentage of the test...

[UTUSN]

3. K&R #1 for, finally, a GD thread withOUT dead celibrity dumping ground!1 n/t

[paulsby]

4. actually, you have it exactly wrong

this decision supports the civil rights act and establishes that it's not ok for govt. to discriminate on account of race, out of fear of getting sued.

see also : title VII

this decision supports justice, EQUAL TREATMENT UNDER THE LAW, and labor rights.

[CTyankee]

6. But it HAS essentially changed the law and that is "legislating from the bench"

n'est pas?

[paulsby]

7. actually, it didn't change the law

as much as it said the city has to actually APPLY TITLE VII. title VII applies to all americans.

have you read it?

i'm also not aware of any case that had such a set of facts as this case. iow, several issues had never really been addressed.

the primary issue (imo) is that the lower court focused on the city's INTENT, not on whether they had good cause to act.


all this decision did is say that Title VII must be applied. well, duh. it's the law.

what i find fascinating, is that since this was a title VII violation, the scotus didn't have to address the EPC issue.

i think THAT will be interesting.

i quote a section of the ruling. because it's good...

The record in this litigation documents a process that, atthe outset, had the potential to produce a testing proce-dure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the testitself and its administration. As we have discussed at length, the process was open and fair.

The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a law-suit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. 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.

[CTyankee]

8. You might want to check out Linda Greenhouse's NYT op ed piece today.

http://www.nytimes.com/2009/06/30/opinion/30Greenhouse.html?_r=1&ref=opinion

[paulsby]

9. just did thx. nt

[CTyankee]

10. The change that Greenhouse writes about was what I was driving at.

I read it twice now and this is what she means by a new ballgame. When the rules change, the game changes...

[paulsby]

11. well yea

it's just that i cannot find any case law (not saying it doesn't exist) that really even addresses this issue.

try this article. it's excellent.

http://www.scotusblog.com/wp/analysis-ricci-without-the-rhetoric/#more-10110
The cases of Frank Ricci and his 17 New Haven, Conn., firefighter colleagues — all whites except one Hispanic — now return from the Supreme Court to lower courts, with only one thing settled: their rights under a federal civil rights law were violated.

The Court’s ruling in Ricci, et al., v. DeStefano, et al. (07-1428) and a companion case with the same name (08-328) says nothing at all about a remedy for that violation, and leaves a host of questions to be answered.

Although the Court decided that city officials in New Haven violated Title VII of the federal civil rights law by failing to promote any firefighters to seven slots for captain and eight slots for lieutenant, it is not clear how many slots are open now — whether more or fewer — and it is uncertain whether the lists of promotions that were to be made from the results of the test in the fall of 2003 remain intact.

The decision does not guarantee an individual firefighter, by name, that he will become a captain or a lieutenant in New Haven. And, while the winners of this lawsuit may very well claim that the denial of promotions entitles them to back pay, or even to money damages, the Court did not address any such claim, leaving it for further exploration by other judges.

While the Court seems to have said that, if an employer – public or private – conducts hiring or promotion tests that are legally sound, those who score highest and meet other selection factors cannot be denied a job or a promotion because of race, the decision does not say that the employer has any duty to avoid closing off jobs or the promotions so that no one is chosen (so long as it does not do so for racial reasons).

No duty, whatsoever, to keep slots open is imposed, although it may be doubted whether many employers would alter their payrolls to eliminate job opportunities just to keep from losing a lawsuit.

The decision did make some things clear, and that will influence what can happen next in the New Haven case, in particular. And there are conclusions in the ruling that definitely will apply to other cases, in court now or in the future, involving claims of racial bias in job placement.


First, the Court ruled that the tests used for firefighter promotions in New Haven were legally valid. Second, it ruled that city officials there had failed to show that there were any alternative tests that could have had less of a negative impact on minority test-takers. Third, it ruled that the city had not shown that it had a genuine fear of being sued by minority firefighters if it gave most of the promotions off the 2003 tests to whites. And, fourth, it appeared to rule that, even if the city goes ahead and uses the test results to promote whites for most or all of any open slots, minority firefighters will have no legal complaint that they were victims of discrimination because the city can claim that it had to make promotions to avoid violating Title VII’s protection for the whites who scored best.

(continued...)

[CTyankee]

12. Wow. New ballgame indeed!

Our mayor is now deciding what to do. He's up for reelection this year so god knows what he'll come up, he is such scum. Also in today's NYT look for an article that discusses how out of date the New Haven test is. Other cities have moved beyond it because best practices now says that a pencil and paper test simply cannot accurately assess leadership qualities; it is a feat of memorization only and a better way is extensive use of simulation, oral and including reviews of actual performance by superiors. DeStefano should have changed this test to be morein line with reality a long time ago (the test is 2 decades old!). If he had there probably would be NO Ricci v. DeStefano and its devastating fallout...

[paulsby]

13. 2 decades old?

that's problematic certainly.

fire science, among other things, has advanced significantly in that time frame.

[CTyankee]

14. Yup, now you are seeing the problem. He arranged this with the union.

It obviously hasn't changed. I'm not liking the looks of this. It looks to me like the old boys network.

The NYT has this article, today. Don't take my word for it....please read and let me know what you think...

[paulsby]

17. i read the article at NYT

also the (imo much better one) at scotusblog.com

regardless, the fact that the test is 2 decades old does not provide any evidence it was racist. merely that it was likely outdated.

those are ENTIRELY different things.

i am a firearms instructor for cops. if i were to teach a curriculum of firearms instruction and use of force to officers based on 20 yr old practices, that would be a very BAD curriculum.

it would not be racist.

the firearms test would be less relevant to real world shoots and what we know about physiology etc.

but not racist.

i've done this job over 20 yrs. the curriculum back then was poorer than it is now. numerous real world studies (the newhall shooting specifically) helped the curriculum improve.

one other point i think a lot of people are missing. given sufficient 'n', it is practically guaranteed that completely non racially biased tests, even if we accept arguendo that all races are equally qualified across the population of test takers in all cities on all fire tests (which is absurd, but let's assume it) will still sometimes render disparate results.

just like if you do a 30 trial coin flip experiment and do it several hundred times.

assuming 15,000 flips for instance, you are almost guaranteed to see some very statistically unlikely (in the short run) results.

it doesn;'t therefore follow the coins are biased.

[CTyankee]

18. My problem with this test is that it is outdated, just as you say, and is a poor way to

accurately gauge leadership qualities among seasoned firefighters seeking promotion. If better tests are used in other cities with similar racial diversity to New Haven has yielded less racially skewed results, I think that proves my point. Actual results here count more than a math probability exercise...

[paulsby]

19. it is more than an exercise. exactly. there are real victims

what matters more than a math probability exercise is that ABSENT STRONG EVIDENCE (that was the words used by the scotus) that the test WAS racist, the results stand. because we don't change the rules AFTER the test is administered. that's my point. you keep forgetting this is not theoretical. there are real victims here. many of whom (read the case) spent an incredible # of hours studying for the test, the test that was offered for promotion. there is little doubt that there are BETTER tests that could have been offered. that's irrelevant to the point. the point in Ricci was that in order for the results to be thrown out on the basis of race (and it was stipulated that the racially skewed results were why it was thrown out), there has to be strong evidene the test was racist. there is NO evidence it is racist. grok the point? police and fire departments are also not legally obligated to offer the BEST test, btw, for promotional or specialty assignment ops. god knows i have taken some tests that were kind of stupid. for example, i haven't taken it yet, but as an elite strength athlete myself who has studied strength/endurance
requirements for tactical units, i can state definitively that our SWAT test physical is decidedly sub-optimal in the factors of strength, speed-strength, strength-endurance, etc. it tests. it's not terrible, but it could be much better. that does NOT invalidate the test. i am a firearms instructor. the test i took to qualify as a firearms instructor is also far from the best. etc. etc.

[Raineyb]

20. What are you saying? That the black firefighters were inherently inferior

and that's why they didn't do as well? Because if a test had excluded so many white people we wouldn't even be having this discussion.

[paulsby]

21. no, that's not what i am saying

but like i said, ignorance of statistics is common.

[spooky3]

15. No, it's not that simple. Read Ginsburg's dissent (joined by the other 3

reasonable justices). Title VII (and the Civil Rights Act of 1991) outlaw disparate impact discrimination as well as disparate treatment discrimination. Ginsburg's dissent does an excellent job of pointing out how this case failed under disparate impact theory.

[CTyankee]

16. Yep, and I am so sad that my mayor did this to civil rights in this country.

It is unforgiveable, IMO. I am so outraged it is incredible. Here he had a chance to change this whole way of testing people but then let them go through it any way and get what he gave us. It's bad for whites, for blacks, for the U.S.A. This guy is total scum...