Playing With Fire: The Obama Administration Backs Anti-White Discrimination in Ricci
April 19, 2009, 05:00 AM
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(See also: Quotas in the San Francisco Fire Department—A report on ten years of mischief, by Ray Batz, American Renaissance, September 1998)

I'm often asked: Why do I bother writing about racial gaps in test scores? How can such an arcane subject be of any importance?

And yet test scores are at the heart of what may be the most important upcoming Supreme Court case, Ricci v. DeStefano. The issue: reverse discrimination against white firemen.

Ricci provides a valuable window onto what affirmative action imposes upon American organizations. Typically, the contortions our institutions go through to avoid federal discrimination lawsuits are hidden from public view, but the Ricci case exposes the bizarre, convoluted, and insane way the game is played.

There's been much talk recently about how the government can stimulate the economy, how it can make our institutions more efficient. The President has been coming up with expensive suggestions—starting with his December call for the government to screw in more fashionable light bulbs.

But the surest way for America to become more productive is for the government to unsnarl itself from institutions that actually do things.

Most obviously, affirmative action is a hugely expensive 40-year-old hairball. Can we still afford it?

For example, our society needs to hire and promote competent firemen, because they keep buildings from burning down and citizens from dying horrible deaths. And firefighting now requires not just bravery but also a wide variety of technical expertise—that is, ultimately, intelligence.

In the Ricci v. DeStefano case, however, the Obama Administration is intervening on the side of incompetence. As David G. Savage reported in the Los Angeles Times:

"The Obama administration, taking its first stand on race and civil rights, sided with the city officials and said they were justified in dropping the test if it had 'gross exclusionary effects on minorities.'" [Firefighters' civil rights case could reshape hiring policies, By David G. Savage, April 6, 2009]

This might come as a surprise to the various pundits who argued that electing Obama would somehow bring an end to racial quotas. But it won't surprise readers of my book, America's Half-Blood Prince: Barack Obama's "Story of Race and Inheritance."

And don't assume that this case is too trivial for Obama's attention. To the extent that the President has a field of expertise, affirmative action law is it. That's what he taught at the University of Chicago: "Current Issues in Racism and the Law". And he ran hard on this when addressing black audiences.)

Frank Ricci, pictured above, is the lead plaintiff of a group of New Haven, Connecticut firemen (17 whites and one Hispanic) who took the city's fire department promotion test in late 2003 and earned advancement to the rank of lieutenant or captain.

No blacks scored high enough to qualify for promotions. On the Lieutenants' exam, the mean black score would have fallen at the 20th percentile among whites. (Hispanics scored the same as blacks). On the harder Captain's exam, the mean black score fell at the 10th percentile for whites, while the average Hispanic scored at the 18th percentile. (You can see the individual test results at Adversity.net.)

There is nothing surprising or anomalous about these percentiles. They're almost identical to blacks' and Latinos' results on professional school tests such as the LSAT used by law schools and the MCAT employed by medical schools.

(New Haven, by the way, is home to the Yale Law School, which enjoys the highest LSAT scores in the country. But punditry by Yale Law professors on this backyard case has tended to be muted. Perhaps they are torn between their liberalism and their desire not to die needlessly due to inept firefighters.)

A prominent black supporter of New Haven mayor John Stefano objected to the racial hue of the fire department's results. So in 2004 the mayor talked the Civil Service Board into throwing out the test on the grounds that otherwise the city might get sued by blacks for using a test with "disparate impact" on protected minorities.

And the federal Equal Employment Opportunity Commission does indeed enforce a guideline that a "selection rate for any race, sex, or ethnic group which is less than four-fifths . . . of the rate for the group with the highest rate will generally be regarded . . . as evidence of adverse impact".

In other words, if, say, 50 percent of whites pass your test, then 40 percent of blacks darn well better pass or the federal government will want to know the reason why.

Of course, everybody involved more or less knows the reason why: on average, blacks aren't as smart as whites. But, at all costs, you must act like you don't know that. If you know what's good for you, you'll wield Occam's Butterknife instead of his Razor.

New Haven hasn't bothered to hold another exam since 2003—presumably because it knows that any reasonable test would produce roughly the same results. Instead, it just hasn't promoted anybody in five years. Instead, it has filled posts with "acting" lieutenants and captains of the politically desired colors.

Not promoting anybody may seem ridiculous, but it's become quite common in America's cities. For example, Chicago spent $5 million dollars devising an absolutely bulletproof non-discriminatory police sergeant's test in 1994, only to have 109 of the 114 top scorers turn out to be whites. So Mayor Richie Daley just refused to promote anybody for several years, until he could push through his alternative system of promotions based on "merit" ("merit" being defined, in effect, as whatever the finely honed political instincts of Richard M. Daley found to be least trouble for his career).

The cities find themselves in an absurd legal position. They are subject to civil service rules and civil rights laws that outlaw favoritism—and, simultaneously, to EEOC and Department of Justice regulations that mandate it.

This leads to even more pretzel logic. Thus New Haven claimed that it wasn't discriminating against white firemen—it was just trying to avoid being sued for discriminating against blacks!

And, incredibly, the federal Second Circuit Court of Appeals bought that rationale by a 7-6 vote (with potential Obama Supreme Court nominee Sonia Sotomayor one of the seven).

The Second Circuit's decision was all the more incredible because the distinguished judge Frank Easterbrook of the Seventh Circuit had already shot down the same circular logic in 2004, when Chicago tried it the Biondo case involving testing for promotion of Chicago firefighters.

Easterbrook incredulously asked:

"[T]he premise of the City's argument is that [the EEOC] regulations supply a compelling governmental interest in making decisions based on race. How can that be? Then Congress or any federal agency could direct employers to adopt racial quotas, and the direction would be self-justifying: the need to comply with the law (or regulation) would be the compelling interest. Such a circular process would drain the equal protection clause of meaning."

(Sorry about all the Chicago examples—I used to be a Chicagoan so I can make more easily make sense of the contorted history of public safety employment testing in the Windy City. But you can find similar cases in most cities.)

Many assume that firemen just have to be brave, but here's a very simple question from an entry-level practice test:

When coupling hoses together, ___ 50-feet hoses and ___ 75-feet hoses will result in a length of 575 feet.

a. 5, 4

b. 4, 4

c. 5, 5

d. 4, 5

Now imagine having to solve that while burn victims are screaming for help.

(Here are some more free practice exams.)

 

For leadership positions, the intellectual demands are much greater. (Here are Wikipedia links to over 100 different issues involved in basic firefighting.) Hence, the New Haven plaintiff Ricci reports studying 8 to 13 hours per day for three months to take his promotion exam.

The promotion exam Ricci aced was no off-the-rack quiz. New Haven paid a reported $100,000 to I/O Solutions to devise a nondiscriminatory test. It wound up being 60 percent written, 40 percent oral. To judge the candidates' oral responses, New Haven paid to bring in 30 veteran fire department managers from around the country, two-thirds of them minority.

The consulting firm's website explains:

"Many of our public safety clients came to us while struggling to meet the demands of the U.S. Department of Justice. Developing solutions for them has made us keenly aware of the steps that must be taken to ensure the validity, reliability, fairness and defensibility of every examination process."

(In case you are wondering, the actual test used in New Haven is not available online.)

I was surprised to learn that devising firefighting tests is a booming industry. For example, I/O Solutions boasts that its entry-level firefighter test was chosen by the City of Chicago's consultant over eight competitors.

Why is business so good?

Ricci's brief gives a clue when it explains the lavish attention the firm devoted to devising New Haven's test:

"Aware that New Haven, like other cities, routinely experiences racial disparities in outcomes of qualifying exams, IOS went to great lengths in collaboration with city officials to mitigate that impact to the greatest extent possible without compromising the integrity of the exams. It engaged in a painstaking process of job analyses, employing questionnaires, interviews, and ride-along exercises with incumbents to identify the importance and frequency of essential job tasks. "

The firefighting business doesn't really differ much from town to town, so why all the hand-holding? The brief continues:

"There was a deliberate overrepresentation of minority incumbents in this process. IOS identified professional texts and other source material in collaboration with NHFD Chief Grant and Assistant Chief Dumas, who is black. "

It took me a while to figure out the reason for the custom testing. You have to remember the rules of the game that produce this Kabuki-like ritual that provides so much work for these psychometric consultants: Everybody involved must pretend that the reason Non-Asian Minorities (NAMs) do worse than whites in virtually every other city in America is because of some undiscovered flaw in the testing system.

For example, when federal District Court trial judge Janet Arterton Bond upheld New Haven's treatment of Ricci and company, she opined:

"It appears that the reasons for testing disparities remain elusive. Dr. Helms [the city's "expert" witness] testified that many theories exist, but experts on standardized testing nationwide have been unable to satisfactorily fully explain the reasons for the disparity in performance observed on many tests."

But ignorance is strength for the diversicrats—because, as the Judge claimed,

"Notwithstanding the shortcomings in the evidence on existing, effective alternatives, it is not the case that defendants [New Haven] must certify a test where they cannot pinpoint its deficiency explaining its disparate impact under the four-fifths rule simply because they have not yet formulated a better selection method."

In other words, we're all going to pretend that—although in several decades of trying, nobody has come up with a "better selection method" (i.e., one that promotes more NAMs without too many innocent victims suffering fiery deaths)—that doesn't mean one can't be found Real Soon Now.

Hope and Change!

And that's a big part of a test design firm's implicit sales pitch. Sure, they imply, everybody else has always failed to find the Holy Grail of a valid test that will produce racially equal results. But this time, doggone it, we're going to try extra hard and get it right!

So the consulting firm comes to town and laboriously asks anybody who is likely to later raise a stink over the results what they think should be on the test. They get as many NAM fire department figures as possible to okay the content.

Eventually, when the NAMs sue the city for discrimination because they didn't score well on the test, the consulting firm comes back to testify (presumably at its usual per diem rate) about all the NAMs who signed off on the test.

It's a repetitious way to make a living. But it's a living!

Alternatively, as in the New Haven case, the city caves in to racial pressure and throws out the test results.

Whatever. The city's check cleared!

If the client really wants to rig the test, well, that can be arranged, too. For example, Chicago has apparently attempted to get around the EEOC's fourth-fifth's rule by having I/O Solutions devise tests so easy that practically everybody passes them. Mayor Daley boasted in a 2006 press release:

"The City of Chicago today announces that over 17,000 applicants passed the Firefighter/EMT entry-level exam … Nearly 20,400 applicants took the exam …"

Hilariously, this is a pass-fail exam that was passed by 85 percent of the people who walked in off the street because they wanted a job. The city then hired individuals "randomly" from among those 85 percent.

Similarly, in 2007, Chicago gave its first police sergeants exam in years … and seven out of eight passed.

My advice to Chicagoans: Remember that old 1960s joke about "Next time you need a cop, call a hippie"? Well, keep in mind this idea of calling a hippie. As the old cops and firemen retire, it may be your best chance.

 Why do controversies over reverse discrimination against white firemen trying to get promoted generate a fair amount of favorable publicity? For instance, last month a court awarded $6 million dollars to the last 75 of 175 white firemen discriminated against on the City of Chicago's 1986 promotion test—a 23-year struggle, but one the white firemen finally won.

Are white firemen particularly discriminated against?

Not necessarily. I suspect you just hear more about injustices done to white firemen than to other white workers.

Why? Because firemen have friends. They're connected—to each other, and to their communities.

People like firemen. Firemen risk their lives to save our lives. And on 9/11/2001, a stunning 343 New York firemen gave their lives—a number that deserves to be inscribed in our culture as indelibly as "300" was engraved in the memory of Ancient Greeks.

Now note this irony: the Bush Administration later sued the heroic FDNY for discrimination over its entry-level test. Newsday reported:

"In the 1999 test, about 90 percent of white applicants had a passing score, but only 61.2 percent of black and 77 percent of Hispanic test-takers passed, according to the complaint."

That's a 1.0 standard deviation difference between whites and blacks, which is typical for most kinds of cognitive tests. It's what we see nationally on the LSAT (1.15).

(Hey, I've got an idea—let's abolish the LSAT and not let anybody be admitted to law school for five years!...Wait a minute, clearly we can't do that, because the LSAT is taken by the right kind of people, the important people, the kind of people who do sophisticated things like look up citations and place conference calls. It's not taken by the peons who merely rescue citizens from burning buildings. Sheesh, how smart do you have to be to do fight fires?)

You'll note that, unlike reverse discrimination against white firemen on promotion exams, which can go to the Supreme Court, discrimination against unemployed whites taking fire departments' entry-level hiring exams is routine and passes little remarked outside of local newspapers. For example, on March 26, 2009, Jen McCaffery in the Virginian-Pilot reported:

Portsmouth Settles Discrimination Lawsuit

"Portsmouth, VA—The city has settled a racial discrimination lawsuit contending that a test used to hire entry-level firefighters rejected a disproportionate number of African American candidates. … As part of the fire department settlement announced Wednesday, Portsmouth will no longer administer the written entrance exam the Justice Department found discriminatory.

"Since 2004, the test has been administered four times. White applicants passed at a rate of 85.9 percent, while the rate for African American applicants was 42.4 percent, according to documents filed Wednesday in federal court in Norfolk."

The reporter isn't oversimplifying the federal government's case. That's all there is to it: blacks did bad on a nationally-used standardized exam. You can read the feds' complaint for yourself and see if they presented any actual evidence of discrimination.

Portsmouth saw about the typical white-black gap (1.27 standard deviations).

The Virginian-Pilot's McCaffery continued:

"Portsmouth City Attorney Tim Oksman wrote in an e-mail that the city was 'very pleased' to reach the agreement with the Justice Department.

'It will increase diversity within our workforce—a goal we all support——and it will do so in ways that do not diminish professionalism, and at a very acceptable cost,' Oksman wrote."

A very acceptable cost ... as long as you don't count the people who burn to death because you didn't hire the best.

But note that future white Portsmouth firefighter applicants who get turned down by whatever cockamamie selection system the city rigs up to avoid the wrath of the Justice Department will never know the reason why. Because applicants are just a bunch of random white guys, they can be pushed around. You can't fight City Hall.

In contrast, once white guys are in the Fire Department, they have rights and connections, so they can't as easily be shooed away.

This doesn't mean that Ricci and friends will win in the Supreme Court. The last time the Supreme Court considered affirmative action (the Grutter and Gratz cases of 2003), it just made things worse.

It didn't help that Solicitor General Ted Olson's forthright briefs were rewritten by affirmative action beneficiary and long-time Bush crony Alberto Gonzales.

In contrast, we can be sure that the Obama Administration will speak with one voice on this topic so close to the new President's heart.

Last year, I pointed out that GOP nominee John McCain could readily defeat Obama by getting tough on his radical record, especially on affirmative action—but I also predicted, correctly, that McCain wouldn't have the necessary "Right Stuff" to do so.

But in the end, New Haven's firefighters, and white Americans generally, will be forced to turn to political leadership that will defend them.

In that sense, by backing anti-white quotas, Obama's Democrats are truly playing with fire.

 

[Steve Sailer (email him) is movie critic for The American Conservative.

His website www.iSteve.blogspot.com features his daily blog. His new book, AMERICA'S HALF-BLOOD PRINCE: BARACK OBAMA'S "STORY OF RACE AND INHERITANCE", is available here.]