KAREN LEE TORRE (lawyer for Ricci et al): I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. ... Please look at the examinations. ... You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don't do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn't require any knowledge to do the job. ...Once again, I predict a narrowly drawn verdict for Ricci on the grounds that the city of New Haven refused to have done the validation study that they had already paid for.
JUDGE SOTOMAYOR: Counsel ... we're not suggesting that unqualified people be hired. The city's not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there's an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you're unqualified—the pass rate is the pass rate—all right? But if your test is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try and look and see if it can develop that?
KAREN LEE TORRE: Because they already developed it, your honor.
JUDGE SOTOMAYOR: It assumes the answer. It assumes the answer which is that, um, the test is valid because we say it's valid.
KAREN LEE TORRE: The testing consultant said it was valid. He told them it was valid.... They had evidence that the test was job-related and valid for use under Title VII.
But Sotomayor's question reveals the kind of disingenous intentional cluelessness that is the media conventional wisdom.
The unmentionable truth is that a fair test of a complicated subject will always tend — on average — to put NAMs at the bottom. Life is one long series of aptitude tests. Fire captains need to know a lot of stuff — much of it that will never come up in their jobs ... until the day it does — and studying for their promotions exams are times when they are motivated to really learn.
So, what should be done legally about the fact that fair and relevant tests will be tests that whites do better on average than blacks?
I don't really like the idea of burning to death because the less competent guy got the promotion due to his race, so I'd say: nothing.
On the other hand, if we must offer firey sacrifices to the goddess Diversity, then it's better to have explicit racial / ethnic quotas than to lower standards, as, say, Chicago has done to meet the EEOC's Four-Fifths Rule by passing 17,000 out of the 20,000 firefighter applicants who walked in off the street, then choosing randomly among the top 85% of the distribution. People are less likely to die horrible deaths if we have quotas that at least select the best whites, the best blacks, and so forth.
If any Supreme Court clerks are reading this, here's my suggestion: as the EEOC's "Four-Fifths Rule" that put's the legal burden of proof on hiring or promoting methods under which any group does less than four-fifths as well as the best-performing group should be abolished for the same reason that the "separate but equal" doctrine was no good. Sure, it sounds okay in theory, but in practice, separate but equal turns out to be largely a fraud. Similarly, as decades of social science (orders of magnitude more conclusive than the tentative social science confidently cited in Brown v. Board of Education) show, the Four-Fifths Rule institutionalizes fraudulence, as Judge Sotomayor's question demonstrates.