SCOTUS' Ricci Ruling Expected Monday

By Big Tent Democrat, Section Supreme Court
Posted on Sat Jun 27, 2009 at 10:57:38 AM EST
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AP:

A closely watched discrimination lawsuit by white firefighters who say they have unfairly been denied promotions is one of three remaining Supreme Court cases awaiting resolution Monday.

That would be Ricci v. DeStefano. I have written numerous posts on Ricci (particularly on existing "disparate impact" jurisprudence and extreme conservative judicial activism) and will write many more I am sure after the SCOTUS announces its decision. The reason is obvious - Judge Sonia Sotomayor's joining of a panel affirmance of a district court's dismissal of a white firefighter's Title VII action. One of the reasons Ricci has become a flash point is the incompetence of American journalism. Consider the AP report I link:

Sonia Sotomayor, nominated to take Souter's place, was one of three appeals court judges who ruled that officials in New Haven, Conn., acted properly in throwing out firefighters' promotions exams because of racially skewed results.

(Emphasis supplied.) That is not what any court decided. It is not a court's place to determine whether anyone "acted properly." In civil cases, it is to determine whether a plaintiff has a cause of action - to wit, to decide if the defendant acted UNLAWFULLY (and of course associated issues such as whether a plaintiff has gleaned sufficient evidence to survive summary judgment, to sustain a jury verdict, etc.).

So Monday will be a big day for Judge Sonia Sotomayor. It seems likely that the extreme conservative judicially activist Roberts' Court will find the one Title VII case it actually likes - the one brought by a white guy and will be willing to overturn a 38 year old precedent, Griggs, in order to support the white firefighter's case.

Some people might call such a ruling empathetic. But empathy for the downtrodden white male is always acceptable in the United States.

I am sure I'll be writing much more on this on Monday.

Speaking for me only

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SCOTUS' Ricci Ruling Expected Monday | 24 comments (24 topical)

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But empathy for the downtrodden white male is alwa (5.00 / 1) (#5)
by jerry on Sat Jun 27, 2009 at 01:57:35 PM EST

Ugly little world you live in BTD, where you want to parcel out empathy, and where you yourself are willing to judge empathy based on who it goes to.

No question (none / 0) (#1)
by pluege on Sat Jun 27, 2009 at 11:52:26 AM EST

roberts, alito, scalia, and thomas will rule whichever way would reflect the worst on Sotomayer regardless of the merits, facts, or law of the case. I don't have to know anything about the case to know that.

And besides the left/right political aspect there is also the psychotic thomas, the product of affirmative action resenting that fact, and in true republican form doing all he can to make sure others do not obtain the same benefit as him.

I am not that cynical. (5.00 / 1) (#2)
by oculus on Sat Jun 27, 2009 at 11:56:57 AM EST

Then you're not paying attention (none / 0) (#4)
by tokin librul on Sat Jun 27, 2009 at 12:24:10 PM EST

n/t


Were you napping in 2000 (none / 0) (#14)
by pluege on Sat Jun 27, 2009 at 07:44:53 PM EST

or are you too young?


Were you napping (none / 0) (#15)
by pluege on Sat Jun 27, 2009 at 07:45:45 PM EST

in 2000, or were you too young in 2000?


: Hey, I can read. Hearing is another (none / 0) (#18)
by oculus on Sun Jun 28, 2009 at 12:24:02 PM EST

matter altogether.

Is there a website somewhere... (none / 0) (#3)
by EL seattle on Sat Jun 27, 2009 at 12:22:43 PM EST

... that's compiled a "scorecard" of Supreme Court decisions for affirmative action (and similar) cases over the past 30 years?

It would be interesting to know which justices never changed stance on the issue, and which justices have been more open to the individual merits and arguements of each case.

"extreme conservative judicial activist" (none / 0) (#6)
by bocajeff on Sat Jun 27, 2009 at 01:59:06 PM EST

hyperbole much?

Why not? (none / 0) (#9)
by Donald from Hawaii on Sat Jun 27, 2009 at 03:41:16 PM EST

You have to return the opposition's fire in kind, i.e., you have to be willing to not pull your punches and to give as good as you get.

IMHO, our main mistake in the past has been our gracious (and repeated) assumption that we're dealing with reasonable people from a rational conservative base, rather than with an insane clown posse of rigidly uncompromising white-wing ideologues that they truly are.

I applaud BTD for recognizing that, and for refusing to travel down that political cul-de-sac. And rest assured, it IS a political confrontation here, whether you like it or not. so, if the hyperbole fits ...


well, (none / 0) (#11)
by bocajeff on Sat Jun 27, 2009 at 04:46:47 PM EST

the right says the same thing about the left. Therefore, it's one's hyperbole against the other.

But words have meanings and when you start to water down the meanings trouble will usually begin. If this court is 'extreme right wing' then what would you call real fascists and real racists? You have the right to believe John Roberts is akin to the Klan. But it doesn't really do justice to the horrors of the Klan does it?


: Um (none / 0) (#13)
by Big Tent Democrat on Sat Jun 27, 2009 at 07:31:57 PM EST

How about fascists and racists?
I do not believe I have ever called Roberts either.

Further, wasn't Ricci v. DeStefano ... (none / 0) (#7)
by Donald from Hawaii on Sat Jun 27, 2009 at 03:22:58 PM EST

... a per curiam appelate decision of only one or two paragraphs in length? Now, if that's the case -- and please forgive my ignorance, BTD, because I'm speaking as a lay person -- I would understand that to mean that the appeals panel didn't really disagree with much if any part of the lower court's decision.

Yet the media, particularly on the right, has by and large deliberately implied to the general public that the appelate decision in Ricci v. DeStefano was much more detailed and lengthy than it actually was, and further that it was Judge Sotomayor's own written opinion, and hers alone.

I'll have to leave it to you and other knowledgeable attorneys to debate the legal merits or demerits of Ricci, but the right-leaning media's general misrepresentation of the appelate decision's authorship is my main beef with the coverage here.

Empathy for the WM?? (none / 0) (#8)
by jccleaver on Sat Jun 27, 2009 at 03:34:29 PM EST

But empathy for the downtrodden white male is always acceptable in the United States.

This is a serious question: Where exactly in the US do you live? Where I'm from, political correctness outside of those with "extreme conservative" philosophies (read: anyone who watches and enjoys South Park) still reigns supreme.

Would you mind explaining the identity group dynamics of the 2008 Democratic Presidential primaries if this statement is true?

Read BTD's bio on this site. (none / 0) (#10)
by Donald from Hawaii on Sat Jun 27, 2009 at 04:01:08 PM EST

He's from Puerto Rico.

Now, to address your concerns:

This case, and the larger encompassing issue of which it's part and parcel, has nothing to do with the politically-correct crowd going off the rails. Bluntly, this is about the political right's attempt to re-impose upon the rest of American society the historically traditional but now-obsolete concept of white male privilege.

Look, I'm a white male of German-Irish heritage, abut even I fully recognize that despite historically recent efforts to level the playing field, i.e., the civil and voting rights acts and Title IX, white males still enjoy significant advantages in our society over non-white males and females of any race or ethnicity.

So, you show me a white male who likes to whine about "reverse discrimination", and I'll show you an effin loser who still can't make it on his own, even with a running start.

Aloha.


Really? (3.00 / 2) (#12)
by bocajeff on Sat Jun 27, 2009 at 04:49:20 PM EST

Then the firemen who took the test, passed the test are now losers? And the firemen who didn't pass the test (which has never been shown to be biased in any way except for the results which isn't proof of bias) are somehow better than the ones who did pass?

There are plenty of Appalachian whites who would disagree with white mens privilege.


: Title Vii prohibits (none / 0) (#16)
by ding7777 on Sat Jun 27, 2009 at 07:48:28 PM EST

disparate impact; specifically in this case it was the test score which resulted in a less than 80% pass rate for members of a protected class (blacks and hispanics) than for non-protected class members (white).
The company which designed this test never designed a promotional fireman's test before, so maybe the test unintentially favored white guys.
Based on EEO guidelines, what would you do if the test results showed a "disparate impact"?

Title VII and Ricci's Test (none / 0) (#17)
by Suze on Sat Jun 27, 2009 at 08:17:19 PM EST

Disparate-impact law -- as codified by Congress in 1991 -- specifies that an employer whose qualifying exam or other selection criterion produces a racially disparate impact can be held liable for unintentional discrimination only if (1) the test is not "job-related ... and consistent with business necessity," or (2) the employer is presented with and refuses to adopt another, similarly job-related test with less disparate impact.

Some Facts:

Industrial/Organizational Solutions (IOS), the professional testing firm from which New Haven bought the two tests (which were 60 percent written and 40 percent oral) to measure the knowledge, skills, and abilities of would-be fire lieutenants and captains, based the exams on copious research to ensure that the questions were job-related and administered them in a scrupulously race-neutral way. The nine interviewing teams that actively administered the oral portion of the tests each had one white, one black, and one Hispanic member.
The city presented three expert witnesses at the hearings. The only one who had read the exams closely, a firefighting and homeland-security expert named Vincent Lewis, who is African-American, found them to be valid and fair. The two others -- Christopher Hornick, an IOS competitor, and Janet Helms, a professor with no public safety expertise -- admitted they had not studied the tests, while vaguely suggesting that blacks might do better under some other selection process that wasn't clearly described. But even Hornick recommended that the city proceed with promotions of the high scorers.
The New Haven fire chief and the assistant chief, who is African-American, were involved in developing the tests and (the evidence suggests) believed them to be valid. But the city declined to call them as witnesses.
IOS strenuously defended its tests and was ready to provide more-detailed written evidence of their validity. But the city -- determined to block the promotions -- refused to seek such information.

ISO (none / 0) (#19)
by ding7777 on Sun Jun 28, 2009 at 01:43:14 PM EST

never designed a promotional fireman's test before.

Certification was based on those having at least a 70% pass rate on the written exam (the 40% oral had nothing to do with certification - and the written exam violated Title Vii disparate imapct law ).

But don't worry, the activisim of the Robert's court will say its the union who mandated (contracted) that the top 3 spots go to the top 3 scorers who violated Title Vii.


Title VII and Ricci's Test (none / 0) (#20)
by Suze on Sun Jun 28, 2009 at 05:05:27 PM EST

Where did you get the information that I/O Solutions never designed a fire promotional test? From my understanding IOS specializes in entry-level and promotional examinations for public safety (police and fire) departments.

Contrary to reports that no blacks passed, nine did. Their pass rate was about half that of the white test-takers, a common phenomenon in New Haven and elsewhere. Although no black candidate scored high enough to qualify for immediate promotion, three would have been eligible when, it turned out, new vacancies opened up over the next two or three years.

It is a violation if New Haven can be held liable for unintentional discrimination only if (1) the test is not "job-related ... and consistent with business necessity,"

When the high scorers sued, the city made no serious effort in the District or Appeals court to impugn the validity or fairness of the tests.

Before the Supreme Court, the city's new attorneys switched strategies and strained to make a silk purse out of their sow's-ear case by coming up with a barrage of criticisms of the exams. But they shrivel on inspection. For example, the claim in the city's brief that the tests were flawed by "irrelevant or contradictory" questions neglected to mention that black firefighters had faulted only two of the 200 written questions (100 on the lieutenant's test, 100 on the captain's test) -- both of which ISO and the high scorers vigorously defended. The city's attorneys also criticized at length aspects of the exams that clearly had no effect on which firefighters qualified for promotion.

Bottom line - the test was not the problem. Some folks studied and some folks did not. Equal opportunity does not guarantee equal outcome.


From the District Court ruling (none / 0) (#21)
by ding7777 on Sun Jun 28, 2009 at 09:01:01 PM EST

On February 11, 2004, the CSB heard from Chad Legel, Vice President of IOS, who was the "project manager" in charge of
developing the exams at issue. He stated that IOS had prepared "both an entry-level exam and a physical ability test for the
firefighter position" in New Haven, but had not previously prepared a New Haven promotional exam

Captain exam
Forty-one applicants took the Captain exam, of whom 25 were white, 8 black, and 8 Hispanic. Twenty-two of those applicants
passed, of whom 16 were white, 3 black, and 3 Hispanic

Lieutenant exam
Seventy-seven applicants took the Lieutenant exam, of whom 43 were white, 19 black, and 15 Hispanic. Thirty-four passed, of
whom 25 were white, 6 black and 3 Hispanic


ISO and New Haven (none / 0) (#22)
by Suze on Sun Jun 28, 2009 at 09:24:20 PM EST

had not previously prepared a New Haven promotional exam

Ok. If I read that right it means IOS had not prepared a NEW HAVEN exam...that says nothing about previous firefighters exams for other departments...you implied they had not previously prepared any firefighters exams for any city department.

During the civil service hearings neither the city nor anyone else identified any similarly job-related alternative test on which black firefighters might do better. Most likely because they knew there was nothing wrong with the testing instrument - just poorly prepared test takers...


: at the March 11, 2004 hearing, the CSB (none / 0) (#23)
by ding7777 on Mon Jun 29, 2009 at 10:08:03 AM EST

heard from Christopher Hornick.
Dr Hornick identified as an alternative to traditional
written and oral testing processes "an assessment center process.
For example, there's concepts of
situation judgment tests that can be developed and designed, customized within organizations that demonstrate dramatically less adverse impacts. . . ."

Go Figure... (none / 0) (#24)
by Suze on Wed Jul 01, 2009 at 08:58:26 PM EST

New Haven hired 30 board members to conduct the oral section of the examination and 20 of them were minorities and each three person panel that examined a firefighter had 2 minorities on the panel. And still the whites and 3 (not 1) Hispanics scored high enough to rate a promotion. Many other white, Hispanic and Black firefighters also passed the exam but did not score high enough to rate a promotion.

The written section consisted of questions that had been validated as being related to what firefighters do and there was even a list of the references that were used for writing the test published three months before the test.

Despite all this, it still wasn't enough to satisfy those who want to discount earning a promotion on merit. By throwing out the results that didn't give the results they wanted, the City discriminated based on color against those who happened to be white. Go figure!