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Have you ever noticed how many policemen and firemen will stand up in court and swear that they, personally, are the world’s biggest wimps when it comes to suffering endless horrors from psychologically “hostile work environments” down at the station? They make associate feminist studies professors seem stoic. Mostly, of course, it’s black cops and firefighters looking for 7-figure payoffs as victims of discrimination, but whites are getting into the act, too. [A reader sends me a new story from Buffalo about white firemen getting $2.7 million for "emotional distress" in a Ricci-style case. I've added it below.]
From the San Francisco Chronicle:

Bizarre behavior recounted in Richmond racism suit 

by Kevin Fagan 

Between tales of one police captain dropping to all fours to yell “don’t beat me” and black and white commanders angrily proclaiming they were being discriminated against, jurors got a stark depiction Thursday of a Richmond Police Department consumed with racial tensions in 2006 when Chris Magnus took over as chief. 

The revelations came as Magnus spent a second day testifying in a Contra Costa County Superior Court trial over a lawsuit claiming he had discriminated against seven high-ranking black officers. 

Plaintiffs’ attorney Stephen Jaffe tried to make Magnus look like a disconnected leader who revealed racist bents in quips and favoritism, while the chief attempted to portray himself as working to dispel racial tensions that he found when he took the job. 

One of the most bizarre moments came when Magnus described an incident in which then-Capt. Cleveland Brown,

Was his dad a football fan? Isn’t “Cleveland Brown” a character on Family Guy?

one of the commanders suing him, came into his office to complain that he didn’t want then-Capt. Lori Ritter to become deputy chief.

Magnus said Brown had told him he thought Ritter – who, like Magnus, is white and a defendant in the trial – was a racist, and then had pantomimed his displeasure. 

“I remember him getting down on all fours and raising up his arms and saying, ‘Don’t beat me, Miss Lori!’ ” Magnus said. “It was kind of hard to tell if he was joking or if he was acting out a story. 

“I was floored by it,” the chief told the jury. However, he added, “that was pretty typical for Cleveland. He was very animated, very loud, very extreme.” 

He also said Brown had told him that “an African American captain shouldn’t have to work for a white female.” 

In their lawsuit, the black commanders contend it was Magnus who made racist remarks, telling plaintiff Lt. Arnold Threets to imagine Ritter standing over Brown, cracking a whip and telling him to dance. 

After the exchange with Brown a few months after Magnus took the job, the chief made Ritter his deputy. He later demoted Brown to lieutenant. 

Magnus also described a hellish staff retreat in Napa nine months into his job, in which he tried to get black and white commanders to discuss racial tensions and cliques in the department.

Napa Valley sure can be hellish. I heard there’s this one resort in Napa that once served a bottle of Cabernet Sauvignon at 72 degrees, because it thought that “room temperature” means room temperature in a modern American building not room temperature in a drafty old French chateau.

Instead, he said, Brown and others remained hostile and said they didn’t want to cooperate with his new, community-minded policing style. 

The chief said he was “upset” by the tenor of the retreat and told his officers that “if you want to engage in bias, engage in cliques, then you need to work somewhere else, or I will make your life a living hell.” 

The suing commanders have contended that such statements created a racially hostile workplace.

More from The Cleveland Brown Show … Richmond Confidential reports

Lt. Cleveland Brown testified that he never heard the Richmond police chief or deputy chief use racial slurs, but that they made remarks that were offensive to African Americans. 

Former Deputy Chief Lori Ritter “told me to tap dance,” Brown said from the witness stand. “That is racially offensive.” …

As the defense team has during cross examination of all the plaintiffs, Spellberg delved into the allegations that Magnus made racially-insensitive comments about Juneteenth, the holiday commemorating the announcement of the abolition of slavery. 

Brown testified that Magnus asked whether Juneteenth was a “holiday for killing people” during a 2006 deployment strategy meeting with several African American police leaders. 

Brown said he did not express umbrage at the comment, but interjected to briefly explain what the holiday is and what it celebrates. Another officer wasn’t so diplomatic. 

“Lt. Ricky Clark said ‘There goes a lawsuit,” Brown testified.

While it’s emotionally grueling to be a black cop in Northern California, it’s emotionally distressing to be a white fireman in Buffalo, NY:

Twelve white Buffalo firefighters will get an average of $230,430 each in back pay, pension benefits and damages — a total of almost $2.77 million — for emotional distress because the City of Buffalo illegally passed them over for promotions, a state judge has ruled. 

The 12 men sued the city in 2007, contending that the city illegally allowed two promotional lists to expire because minority firefighters had fared poorly on civil service exams. 

The case was affected by a 2009 U.S. Supreme Court decision that said city officials cannot void the results of civil service exams simply because they are afraid of being sued. 

The ruling on damages came 15 months after State Supreme Court Justice John A. Michalek ruled that the city illegally failed to promote based on its 2005 and 2006 tests for racial reasons. 

… Margerum was awarded $30,000 for “emotional damages,” and Fahey was awarded $25,000. Each of the other firefighters got $20,000 for that. 

Depending on his years of service and individual situation, each firefighter also was awarded between $49,859 and $528,706 in “general damages.” 

… According to Fleming, being passed over for promotions that they had earned was a “nightmare” that caused years of anguish for many of his clients. … 

Fahey said the case pointed to “the true nature of reverse discrimination: When it happens to blacks, everybody is correctly upset about it, but when it happens to whites, nobody cares.” 

In Michalek’s ruling, he said some of the firefighters suffered from emotional distress, depression and self-medication issues. The judge wrote that some of the firefighters lost their enthusiasm for their jobs and became “bitter and cynical” because they felt they had legitimately earned promotions but were illegally passed over.

(Republished from iSteve by permission of author or representative)
• Tags: Ricci 
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From the Chicago Sun-Times (thanks to the readers who sent this in):

Police may scrap entrance exam
‘OPEN UP THE PROCESS’ | Union chief: It’s ‘too stupid to be true’


The Chicago Police Department is seriously considering scrapping the police entrance exam to bolster minority hiring, save millions on test preparation and avert costly legal battles that have dogged the exam process for decades, City Hall sources said Tuesday.

If the process is opened to everyone who applies and meets the minimum education and residency requirements, Chicago would be virtually alone among major cities. Most cities have police entrance exams — and for good reason, experts say.

“A background check and a psych [exam] alone will not eliminate some people who should not be there,” said Brad Woods, who ran the Personnel Division under former Chicago Police Superintendents Phil Cline and Terry Hillard.

Calling an application-only process a “step backward” and the “wrong way to go,” Woods said, “When you lower your quality, you will get poor police service and more complaints. … Whenever you make it easier to be the police, you’re doing the citizens and the Police Department a disservice.”

Charlie Roberts, who ran the training division from 1995 to 1999, noted that there are “eleven tracks” recruits must go through in the police academy, including the law and the municipal code.

“If you don’t give someone at least a reading comprehension test, can you just put them in and risk the possibility of having so many of them fail? That could get quite expensive,” Roberts said.

“We were getting people with 60 hours of college credit who were reading at a third-grade level. What do you think you’ll get if you have no screening process?”

Human Resources Department spokesperson Connie Buscemi acknowledged Tuesday that the Daley administration has been exploring other “options” since last fall, when a “request-for-proposals” for companies interested in preparing an on-line police entrance exam was cancelled.

The last police entrance exam was held on Nov. 5, 2006.

“We wanted to try to develop something on-line to allow the city to accommodate members of the U.S. military who are on active duty. But, we didn’t get any responses that met our needs. No one said they could administer an on-line exam” and guarantee its integrity, Buscemi said.

This is a legitimate need, although I doubt if it has much to do with dumping testing. Hiring tests in Chicago are typically given on a single day every few years, with copies of the test delivered written by outside consulting firms delivered to the test site by armored car. Otherwise, insiders will get a look at the test ahead of time and alert their nephews and in-laws to what’s on it.

One problem with this system is that if you are a Chicagoan stuck on active duty in Iraq on the day of the test, you are out of luck getting hired as a Chicago fireman or policeman for years to come. And since the EEOC’s Four-Fifths rule doesn’t apply to military enlistment tests, such as the heavily g-weighted AFQT, Chicago is missing out on its most promising source of future policemen and firemen. But if Chicago offered the test online at the same time it was being given in Chicago, who would proctor the test-takers in the middle of the night in Iraq and Afghanistan?

That’s an interesting question, but it’s a complete sideshow for what’s really going on. Post-Ricci, the politicians can’t fudge the results as much, so now they want to get rid of the test.

“We’re [now] reviewing our options on how to administer the police application process.”

Other sources confirmed that the police entrance exam could be scrapped altogether “to open up the process to as many people as possible.” A final decision could be made later this week.

Fraternal Order of Police President Mark Donahue said the idea “sounds too stupid to be true.” “You need a testing process. … You need to be very concerned about the very limited information you would get from just a screening and application process,” Donahue said.

Something that is completely overlooked but that is totally obvious when you stop to think about it is that civil servant unions, who are always demonized by Republicans, are one of the few effective forces actively working against affirmative action in big cities. The head of the union always has some name like “Donahue,” and union policies work to keep older white civil servants from being fired in the name of making the government work force “look more like Chicago.” This is particularly true for teachers unions, whose leaders all remember when black politicians got local control of New York public schools in the Ocean Hill neighborhood in the late 1960s, and immediately fired hundreds of Jewish schoolteachers and hired blacks to replace them.

Hiring and promotions in the Police and Fire Departments have generated controversy in Chicago for as long as anyone can remember.

The criticism reached a crescendo in 1994 after a sergeants exam produced just five minority promotions out of 114.

The test was the first to be administered by the city after “race-norming” — the practice of adjusting scores on the basis of race — was ruled unconstitutional.

In November 2005, City Hall announced plans to offer the police entrance exam a record four times the following year — and for the first time on the Internet — after an unprecedented outreach campaign that bolstered the number of minority applicants to 34 percent black, 24 percent Hispanic and 26 percent women.

More than two years later, black ministers told newly-appointed Police Supt. Jody Weis that, if he was serious about re-establishing trust between police and the black community, he should start by hiring and promoting more African Americans.

NBCChicago adds

And as of last year, one in four patrol officers were African-American, but just one in 12 Lieutenants were of color.

Let me point out that, to get around the EEOC’s Four-Fifth’s Rule, Chicago has already almost completely emasculated its police and fire tests, in order to make the disparity between white and black passing rates (as innumerately measured by the feds) less than one-fifth. Chicago’s last fire and police tests were passed by 85% of the people who walked in off the street. What’s the point of even giving a test so easy that people at the fifth percentile among whites pass?

So, why not give up on testing completely? That’s the logical implication of the EEOC’s Four-Fifth’s Rule.

As Steve Farron pointed out in The Affirmative Action Hoax, honest racial quotas would be better than abolishing testing. You’d at least get the smartest of each race.

Considering that Barack Obama taught “Racism and the Law” (not, by the way, “Race and the Law”) at the University of Chicago and litigated disparate impact lawsuits in Chicago, somebody might want to ask the President of the United States his
opinion on this subject.

But don’t count on that ever happening.

(Republished from iSteve by permission of author or representative)
• Tags: Affirmative Action, Ricci 
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The opponents of politicians naturally assume that everything they speak or publish was written for them by professional writers. Until I visited the Reagan Library for the first time in the late 1990s, for instance, I had simply gone along with the conventional wisdom that President Reagan was an actor reading other people’s lines. The Reagan Library takes pains to display numerous documents in Reagan’s handwriting, such as long letters to Gorbachev. The publication a number of years ago of a book of Reagan’s 1970s newspaper columns, along with photographs of his handwritten original drafts, conclusively demonstrated that Reagan, in one of his minor careers, was at least as good a newspaper columnist as the newspaper columnists who called him dumb.

What about Obama? The evidence is curiously mixed. He displayed a sizable degree of enthusiasm for writing, but his published output is limited. His high school friends recall him as a facile writer of term papers. He submitted poems to his first college’s literary magazine and at least one article to his second college’s newspaper. None of them are terribly good, but he was young.

He steadily wrote in his diary. During his first sojourn in Chicago he wrote short stories (never published) that impressed his boss. Presumably, they were incorporated into Dreams from My Father. His friends at the time thought he might become a professional writer.

He contributed one chapter to a nonfiction book, After Alinksy, but the prose style is as ho-hum as the topic.

Although Wall Street was booming after he graduated from Columbia, the only private sector job he got was as a copy editor. Similarly, as a discrimination lawyer in Chicago, he rarely spoke in court, explaining later that his most of his jobs were more on the writing side.

On the other hand, as editor of the Harvard Law Review he passed up the traditional right to publish an essay, and only contributed one unsigned note. He appears to have been an acceptable editor of other people’s writing, perhaps a little below average, although that might have been more from a desire to avoid political struggles that could impede his future career. There was a feeling in the next class that they wanted to elect an editor with a heavier blue pencil.

When he was elected the first black head of HLR, he was given a 6 figure advance to write a nonfiction analytical book on race and the law, but didn’t deliver.

He then received a smaller advance for an autobiography, which he also struggled with, even going off to Bali to write. Eventually an elegantly written but soporific book, Dreams from My Father: A Story of Race and Inheritance, was published.

Jack Cashill has pointed out certain similarities with the works of Bill Ayres (a dull anecdote about which way the East River in New York flows, for example), and then makes the leap to asserting that the whole thing was written by Ayres. Celebrity biographer Christopher Andersen claims to have two sources who told him that Ayres provided much help to a stumped Obama, but the sources remain anonymous. Ayres has tried to make a joke out of the question by claiming to have written every word of Dreams from My Father.

Whether Obama’s difficulties in finishing his first book stemmed from the composition of it being beyond Obama’s literary competence is a possibility. But there are others: for example, the sheer absurdity of being paid to turn his boring life into an autobiography at age 33; the problems of writing a life story filled with other characters who are still alive; and his need to avoid providing ammunition to future political opponents (which Dreams certainly succeeded at through its trance-inducing prose style).

When elected State Senator, Obama took on the curious assignment of being a regular columnist for the local Hyde Park newspaper and the Chicago black newspaper. Stanley Kurtz has read these columns in the library stacks, but they don’t exist online.

Finally, in 2006 he published an abovve-average campaign book, The Audacity of Hope, which was read over by 28 individuals before publication, so it’s hard to know out how much Obama contributed to it.

Moreover, there were numerous speeches during these years, most notably his keynote address to the 2004 Democratic convention.

In conversation, Obama is brilliant at restating the other person’s point of view at least as well as they can state it themselves. This is the source of his “I have understood you” powers. On the other hand, he often stumbles when expressing his own views. But the President has good reason to speak cautiously and review everything in his head as he’s saying it. For example, when he blurted out how he truly felt about the Henry Louis Gates brouhaha it turned into a fiasco for him.

My best guess is that Obama is a competent writer whose innate urge to express himself is shackled by his fear that leaving a paper trail or spoken trail would undermine his enormous ambitions for power. (Surely, he noted the contrasting career paths of Supreme Court nominees Robert Bork and David Souter.)

That’s why any samples of Obama prose are a welcome addition to our understanding of the President of the United States. One source that I read over in 2008, but hasn’t been much noticed are the elaborate essay questions that he gave his students at the U. of Chicago Law School from 1996 through 2003, which were linked to by the New York Times in 2008, along with the syllabus for his 2004 class “Current Issues in Racism and the Law,” a title that is perhaps more revealing about how Obama feels (the class wasn’t entitled, you’ll note, “Current Issues in Race and the Law”) than the more neutral contents.

Perhaps these essay questions were actually ghostwritten by, say, Professor Lawrence Tribe under retainer from George Soros as part of a complicated plot to make Obama President twelve years later, but I suspect Obama banged them out himself, perhaps with a little help.

Here, for example, is one of the three questions from his 1996 test, along with his “Answer Memo:”

2) Fire Department Hiring.

The second major area of concern for the Mayor [of fictional Wazoo City, which resembles Chicago; the "Mayor" resembles Richie Daley] involves the method by which new firefighters are hired by the Fire Department. At the moment, only 15 percent of the city’s fire-fighters are African-American, despite the fact that the pool of applicants largely mirrors the general population of Wazoo City (50 percent African-American). It is well-established that up until 1980, the Fire Department engaged in discriminatory hiring practices; indeed, getting a job as a firefighter was based largely on your political connections to party ward bosses. As the result of several lawsuits brought by African-American plaintiffs, and a federal consent decree subsequently entered into by the city in 1980, the Fire Department now hires new firefighters exclusively based on each applicant’s ranking on a written exam that is administered once a year. The examination is prepared and graded by a well-reputed testing firm that screens for any potential cultural bias in the examination, and all applicants are provided the necessary materials to prepare for the examination.

Despite claims by some of his supporters that the fire-fighter examination is rigged, the Mayor believes that the difference in test performance between African- Americans and whites is pr
imarily the result of the inferior schooling that African- American applicants have received in the past. At the same time, the Mayor is skeptical that the existing written exam accurately measures aptitude for the job of being a firefighter. He therefore plans to announce that starting next year, Fire Department hiring will no longer be based on the applicants score on an extensive written examination. Instead, the Department will administer to each applicant a short basic aptitude test; all applicants who pass this simple test and meet other basic qualifications (physical examinations, etc.) will be deemed qualified for hire, and will then be selected to fill available job openings on the basis of a lottery. The Mayor’s staff predict that as a result of this change, the makeup of the Fire Department, over time, will come to more closely resemble the racial makeup of the city.

The Mayor has a major political problem brewing, however: the Firefighter’s Union has learned of the Mayor’s plan, and is adamantly opposed to any change in existing hiring practices. The Union argues that the Mayor’s plan represents nothing more than a disguised affirmative action program, and a return to old-fashioned patronage. The Union therefore plans to mount a major petition drive to place a binding referendum on the ballot in the next statewide election. The referendum would essentially require that all applicants for government employment in the State of Wazoo, including municipal employees, be hired on the basis of their ranked performance on state approved written examinations (the referendum would exempt the filling of certain “political appointees” from the requirement).

The Mayor points out that for the better part of this century, the city has had exclusive power to determine the manner in which it selects its employees. It is clear, however, that under the Wazoo State Constitution, a majority of voters may transfer this power to the state through the referendum process. The Mayor also believes that the referendum is likely to pass, particularly because it is phrased without reference to race or gender, but will be packaged solely as a “good government” measure.

The Mayor asks you to write up a brief analysis regarding the possibility of challenging the referendum, should it come to pass, as unconstitutional racial discrimination violative of the Equal Protection Clause. As before, you should make the strongest argument that you can for bringing such a challenge, and then indicate the weaknesses in your argument. In considering this question, however, feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum.

Answer Memo Question IIB –

Mayor Dwight’s Firefighter Plan

This question offers a slight variation on the issues raised by the Mayor’s contracting plan.

The surface parallels between our hypothetical and the fact pattern in Washington v. Seattle School Board should have been relatively easy to spot (Some of you also cited Romer, which isn’t quite right – it was the lower court, and not the Supreme Court, that emphasized the “government restructuring” aspects of the Colorado initiative. Still, I gave you credit if your analysis tracked the discussion below, albeit citing the wrong case). Like the voter initiative in Seattle, the referendum being proposed by the union appears to single out an issue of special interest to blacks – in our case, fire department hiring practices — and attempts to shift decision decision-making power over that issue from the local to the state level. According to Seattle, the fact that a state has the authority to make such a shift isn’t be [sic] relevant; a restructuring of the political process to make passage of “race legislation” more difficult than other forms of legislation places “special burdens on racial minorities within the governmental process,” in violation of Equal Protection Clause.

But is the Mayor’s plan in fact legislation/decision-making of a “racial nature” as that term is used in Seattle? And, even if the Mayor’s plan can be considered “racial” in nature, does that automatically render a facially race-neutral referendum that disallows the plan a “racial classification” subject to strict scrutiny?

These are tricky questions, mainly because Justice Blackmun’s opinion in Seattle lends itself to at least two very different readings. On the one hand, it is possible to argue that for all its fancy talk about government restructuring and democratic processes, Seattle is really just a straight-forward disparate impact case that was settled using the principles set out in Washington v. Davis. Under this reading, the Seattle School Board’s busing program was an explicitly raced-based effort to vindicate the rights of black schoolchildren to .a non-segregated education. By forbidding busing to achieve this explicitly racial purpose (while still permitting busing for various non-racial reasons), Initiative 350 disproportionately impacted black schoolchildren; and although the initiative may have been framed in race-neutral terms, the Court determined — based on the sequence of events, the initiative’s alteration of normal procedural. practices; and so on., (i.e., the Arlington Heights factors discussed above) — that the initiative was enacted “because of’ and not “in spite of’ its adverse effect on black schoolchildren.

If this reading of Seattle is correct, and the facially race-neutral referendum being proposed by the union is simply subject to the Washington v. Davis test for intentional discrimination, then the Mayor will have real problems mounting a successful court challenge. After all, not only is the referendum written in non-racial terms, but the Mayor’s plan is also facially race-neutral.

The Mayor might argue, of course, that although written in race-neutral terms, his plan really benefits blacks, and that the union’s referendum is therefore an act of intentional discrimination designed to keep the City’s Fire Department predominately white. But given the fact that the referendum appears to uphold the very principles of “merit through testing” that the Court in Washington v. Davis found to be so persuasive, it is hard to imagine that a court in this case would be willing to find that the voters of Wazoo voted to uphold such principles “because of,” rather than “in spite of’ its effect on future black hiring (as a number of you pointed out, examining a referendum under Washington v. Davis also raises serious issues regarding whose intent we are suppose to examine). The fact that the current test being used appears to have been “validated” through the consent decree process further weakens the Mayor’s argument. Indeed, in light of the court’s acceptance of testing as a legitimate means to measure merit and upgrade the workforce (were dealing here only with Equal Protection doctrine, and not Title VII law), it is conceivable that a court would sooner find the Mayor’s effort to change the testing procedure to be an impermissible affirmative action program than it would strike down the referendum as an impermissible racial classification.

There is another, no doubt more controversial way to read Seattle. The argument would go something like this: Seattle recognizes that blacks are burdened not only by intentional racism, but also by facially neutral processes that nevertheless place blacks in a structurally subordinate position. Thus, anti-discrimination legislation of the type at issue in Hunter v. Erickson (in that case, a fair housing ordinance) is not the only type of legislation that is “racial” in nature; blacks may also seek to extract through the political process affirmative programs – like the voluntary busing program in Seattle – that may not be constitutionally required, but that nevertheless help alleviate structural inequality. Precisely because such affirmative programs are not constitutionally required (given the Court’s “negative charter of liberties” reading of the Constitution and theories of judicial restraint), a majority of voters may choose not to enact such programs, and may even choose to repeal those programs that the majority feels have outlived their usefulness. What the majority cannot do is to change the rules of the game so as to make it more difficult for blacks and other minorities to achieve such affirmative programs through the give and take of the democratic process – by resort, for example, to state-wide initiatives and referendums in which minority influence is lessened.

If a court were willing to accept such a reading of Seattle, then the Mayor might have a chance at defeating the referendum. The Mayor could argue that once you get beyond certain baseline constitutional requirements of fairness – i.e. no outright discrimination on the basis of race, gender, religion, sexual orientation, etc. — there are no pre-political, non-racial, “legitimate” ways to select a tire department or determine “merit.” The Mayor’s plan is “racial” in the sense that it represents an affirmative effort to increase black representation on the police force without resorting to quotas or lowering standards of performance; at the same time, it is no more racial than is the union’s plan to maintain the status quo through a regime of written examinations. The union is free to debate the pros and cons of the Mayor’s plan in the public square; it can put pressure on the City Council to block the Mayor’s proposal, and can organize to vote the Mayor out of office. What it cannot do is shift decision-making over these racially-charged issues to the state level, where (we assume) blacks have less of political clout.

There are problems with this argument, of course, the most obvious being the one that was raised by the state in Seattle – namely, if the “rules” of democracy in a given state include the possibility of state-wide initiatives and referendums, and if the “rules” of democracy also envision the state imposing its sovereign will on local governments within its borders, then in what sense does the initiative in Seattle, or the referendum in our hypothetical, change the rules of the game? If states and their voters can’t decide, through democratic processes sanctioned by that state’s constitution, to take certain decisions that happen to touch on race out of the hands of localities, then is there any limit to the state legislation that might be potentially overturned? To cite just one example, how do we evaluate state legislation that places property tax caps on localities? Such caps prevent localities from raising taxes to fund public schools beyond a certain level without a majority vote, and presumably has a disproportionate impact on black populations that are both younger and more likely to rely on public, as opposed to private, education. Are they unconstitutional under Seattle?

The bottom line is that such an expansive view of Seattle would implicitly overturn the intent-based approach to evaluating racial issues embodied in Washington v. Davis. My personal guess is that the current Supreme Court would almost certainly shy away from such a reading of Seattle. Of course, we won’t have to guess on the Court’s position for long, since it is precisely these sorts of arguments that will come up in the current challenge to California’s Proposition 209, which bars state government from engaging in any form of affirmative action.

Obama’s views seem to reflect his general boredom with the courts as an agent of social change, in contrast to, say, getting himself elected Mayor of Chicago or President of the United States. Obama passed up clerking for federal judges in order to become a discrimination plaintiff’s attorney in Chicago, precisely to position himself for a run for the Mayor’s office. Certainly, though, he is a well-informed professional discrimination attorney. (That fact, of course, raises obvious questions about his Axelrodian campaign image as being beyond all that race stuff. But you already knew that.)

As writing, the questions and answers seem competent. (I recall that some of the others may be more elegantly written, but I chose this one because I’m interested in firemen’s discrimination lawsuits.)

(Republished from iSteve by permission of author or representative)
• Tags: Obama, Ricci 
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In Slate, Stanford law professor Richard Thompson Ford is trumpeting:

Sure enough, last week, just as New Haven prepared to promote a group consisting almost entirely of white fire captains and lieutenants based on the exam results, a black New Haven firefighter, Michael Briscoe, filed a disparate-impact lawsuit against the city. Like Frank Ricci, Briscoe is a sympathetic plaintiff. He received the highest score of any candidate on the oral portion of the lieutenant’s promotion exam. But he isn’t eligible for promotion because the city based 60 percent of each candidate’s score on the written exam. On this part of the test, Briscoe—like most black candidates for promotion—did comparatively badly. …

UPDATED: Fortunately, the test scores were posted by, and we can figure out who Briscoe is pretty easily.

Actually, Briscoe did very badly on the written test in any sense. Although he scored a 92.08 on the oral test, he only scored a 59 on the blind-graded written test, putting him 66th out of the 77 test-takers on that test. He scored 13th out of 19 blacks on the written-exam. Overall, counting both the oral and written exams, Briscoe finished 24th, with five blacks ahead of him. Why is Briscoe more deserving than the five blacks who did better under the rules?

Briscoe had the largest divergence in scores between the two tests of any of the 77 test-takers, implying his high score on the oral part could well be a fluke. Oral tests are more likely to produce unreliable scores because the sample size of questions per hour of testing is smaller due to the lower bandwidth of oral vs. written communication.

Or, perhaps Briscoe is a smooth talker who can impress outsiders in the short run, but lacks the job knowledge to maintain the confidence of underlings in even the medium run.

This is a classic example of why Disparate Impact is worse than plain old racial quotas. There are five black guys who are better under the rules than Briscoe, but now we’re supposed to rip up the rules and use a different system that will promote Briscoe ahead of the five more competent blacks, as well as push a lot of less qualified whites and Hispanics ahead of more qualified whites and Hispanics.

Moreover, if you changed the weighting on the Lieutenant’s test to favor the Oral component over the Written component, that would have Disparate Impact on Hispanics!

Briscoe’s claim is a perfect example. Why didn’t black candidates do as well as whites on the written exam? Black firefighters argue that because whites are more likely to come from families where firefighting is a legacy (for instance, one New Haven captain’s father and grandfather both served as fire chief in New Haven), they are more likely to get help from a network of friends and relatives in studying for the written exam. Few blacks have such family connections—in large part because blacks were deliberately shut out of firefighting jobs until the 1970s, when black firefighters won discrimination suits in New Haven and in many other cities nationwide. … So heavy reliance on a written exam, if it gives an advantage to legacy candidates, could perpetuate the evils of past discrimination.

Damn white fire geeks always studying how to save people’s lives!

Kind of like how Slate’s other Ricci expert, Emily Bazelon got her job writing about the law by being the second cousin of Betty Friedan and the granddaughter of the most powerful non-Supreme Court judge in America, David Bazelon. Except she didn’t have to pass a written exam to get the cushy Truman Capote Fellowship in Creative Writing and the Law at New Haven’s Yale Law School.

That violates Title VII, unless the exam is job related and there are no less discriminatory alternatives. New Haven’s written exam may be as good as any written exam could have been: The Supreme Court in its ruling in favor of the white firefighters in Ricci pointed out that the city’s written test was carefully developed by a professional company to be job-related and to avoid racial disparities. But Briscoe argues that the written exam did not, in fact, test for the skills that fire captains and lieutenants need on the ground; instead, it rewarded rote memorization. As for alternatives, Briscoe says that the city could have relied more heavily on the oral exam, which required candidates to respond to real-life firefighting and training scenarios. Neither the city nor the company that designed the exam defended making it worth 60 percent of the promotion score. Briscoe also points out that New Haven could have used an assessment-center model, which tests candidates through simulations of real-life job challenges. Many other cities use assessment centers successfully.

Although Ricci was often described as a challenge to affirmative action, getting rid of a flawed exam isn’t affirmative action and doesn’t push diversity at the expense of merit.

Yes, it is affirmative action. The reason Professor Ford wants more weight given to the oral test is because the oral test is inherently flawed.

The key difference between the oral and written test is that the written test was blind-graded while the grading of the oral test was racially rigged from the outset by making almost two-thirds of the judges minorities, which is highly unrepresentative of the distribution of senior firefighting leadership expertise.

The whole point of civil service examinations is to eliminate favoritism, which is why the union insisted on a 60% weighting in favor of the blind-graded test over the easily-rigged oral test.

I would strongly recommend that the Supreme Court fast-track Briscoe’s case. I’d look forward to reading Justice Alito’s opinion.

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Last week’s federal district court ruling in Vulcan Society v. New York throwing out the written tests used to hire some of the 343 firemen who died on 9/11 should be taken to the Supreme Court posthaste, before Clarence Thomas keels over and Obama replaces him with, say, Henry Louis Gates’s lawyer Charles Ogletree. (To understand the political significance of Vulcan, first read my column. Then, to understand the legal significance, read my blogpost below.)

Don’t overlook the publicity-garnering value of the case’s title: Vulcan Society. The late night talk show monologue jokes write themselves. This case could generate a huge amount of publicity — after all, many media personalities have a self-interest in competent FDNY firemen.

Another key would be to personalize it by finding firemen who died on September 11, 2001 who wouldn’t have been hired under Judge Garaufis’s ruling. Personalize the case by showing that he is demeaning and dishonoring their service and sacrifice as being the product of racial discrimination.

It’s time to go to the mat.

Not only does Judge Garaufis’s decision self-parodyingly demonstrate the idiocy of Disparate Impact theory, but it seems to extend it beyond the EEOC’s Four-Fifth’s rule to demand lowered hiring standard whenever there is any disparity, no matter how nugatory, in hiring rates by race.

The question is: Who will take the case to the Supreme Court? Can we trust the Bloomberg Administration to appeal and to appeal in an aggressive fashion? After all, the DeStefano Administration in New Haven sure wasn’t helpful in defending their firefighter tests, and Bloomberg is under much the same political pressures.

I suspect this shows the key, if unstated, reason that Judge Garaufis refused to let the Uniformed Firefighters Association union become a co-defendant while letting the Vulcan Society of black firefighters come into the case midway through to become lead plaintiff. (Who, you might ask, petitions to be a defendant in a lawsuit? An organization intending to make sure a strong appeal is filed.)

Garaufis likely grasped that the union was much more likely to appeal, and appeal on broad grounds, that Mayor Bloomberg, so if the Judge could keep the union out of the case, he could make up any absurd ruling he wanted with less risk that the political will would exist on the losing side to have him overturned.

Can any lawyers out there explain the necessary strategy for getting Vulcan Society to the Supreme Court?

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You can read what the two discriminated-against firemen had to say here. (Vargas’s testimony is toward the bottom here.)

It sure would have been better theatre to have plain-spoken witnesses like these guys testify first before the Senators and Sotomayor plunged into the legalistic thickets.

And here’s today cross-examination of Sotomayor by Sen. Kyl, who pretty much comes out and chants liar-liar-pants-on-fire over Sotomayor’s claim that she was just following precedent in trying to deep-six Ricci. “What precendent?” Kyl aks repeatedly and never gets a satisfactory response.

There’s so many weird customs here that apparently preclude asking obvious questions like, “Judge Sotomayor, on Ricci, you say you were bound by precedent as a non-Supreme Court judge. But now you want to be a Supreme Court Justice. How would you have voted on Ricci as a Supreme Court Justice and why?”

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is now up at

Every so often, an action hit comes out of nowhere—Mad Max, Terminator, Ricci v. DeStefano. Inevitably, we start hoping that the big budget follow-up can keep the same excitement going, just with huger explosions. A few times—Road Warrior, Terminator II—our dreams come true.

I’ve got to say, though, that this Ricci sequel, The Senate Sotomayor Hearing, has so far been the dullest successor since Matrix Reloaded.

Can’t anybody afford a decent script doctor?

You might almost imagine that Sotomayor was crafted to drive away its audience. It’s as if the people in Washington don’t really want American citizens paying attention.


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Here’s a National Journal article by Stuart Taylor on how Sotomayor and two other judges almost got away with making the Ricci case disappear without their ten fellow judges on the Second Circuit hearing about it. Sotomayor’s old mentor, Jose Cabranes, read about it in his local New Haven newspaper and blew his stack at their tactic, which is the only reason it didn’t disappear down the Memory Hole.

Presumably, Cabranes, a New Havenite, didn’t feel like taking a chance on burning to death due to incompetent New Haven firemen.

Tuesday live update: Orrin Hatch is asking some tough questions about the Cabranes scandal, to which Sotomayor is not replying well, but now Sen. Hatch is rambling off into a speech instead of following up with tougher questions, and now has given up. And now it’s time for lunch. Man, the action is just non-stop!

Anyway, I then had to go out and couldn’t catch the thrill-packed conclusion of Tuesday hearings, so did anything interesting happen?

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At the heart of the Ricci case, which Judge Sonia Sotomayor attempted to bury so that it couldn’t be appealed when she heard it by upholding the lower court’s anti-Ricci decision without an opinion (outraging her mentor Judge Jose Cabranes), is the Equal Employment Opportunity Commission’s Four-Fifths Rule.

This regulation says that on any employment test, the lowest scoring ethnic group better pass at a rate at least 80% as high as the highest scoring ethnic group.

The fashionable Advanced Placement tests provide us with a database to test the reasonableness of the rule that gives the Disparate Impact theory its teeth. As I mention in post below, blacks only pass AP tests at a per capita rate not Four-Fifths but One-Twentieth of the Asian rate.

But what about just those more elite students who bother to take AP tests? How reasonable is the Four-Fifths rule for them?

The gaps are smaller, but not a single AP exam would pass the EEOC’s Four-Fifth’s Rule, as the table below shows. (And many colleges require not just scores of 3, but 4s or 5s, which make the racial gaps substantially larger.)

62% 64% 26% 42% 40%
47% 28% 19% 66% 29%
56% 62% 21% 27% 34%
59% 61% 21% 34% 34%
60% 58% 20% 31% 34%
55% 59% 20% 27% 34%
57% 65% 23% 30% 35%
66% 70% 25% 36% 35%
63% 68% 24% 34% 35%
69% 63% 24% 36% 35%
53% 55% 28% 80% 35%
54% 59% 21% 26% 36%
53% 56% 21% 27% 38%
67% 64% 27% 33% 40%
57% 54% 23% 28% 40%
61% 61% 25% 35% 41%
73% 78% 32% 61% 42%
64% 64% 27% 31% 42%
64% 67% 30% 42% 44%
77% 99% 75% 44% 45%
71% 78% 36% 46% 46%
65% 66% 30% 39% 46%
57% 84% 44% 40% 48%
62% 57% 31% 43% 51%
65% 65% 33% 40% 51%
72% 71% 38% 48% 53%
70% 71% 38% 48% 53%
75% 76% 44% 50% 58%
67% 69% 42% 52% 60%
70% 77% 48% 56% 61%
62% 69% 47% 44% 63%
66% 73% 46% 60% 64%
70% 73% 47% 55% 64%
Calculus BC 82% 82% 55% 63% 67%
70% 72% 52% 59% 72%
70% 77% 56% 60% 73%
64% 67% 50% 49% 73%
57% 57% 49% 42% 74%

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Here’s an excerpt from my new column, which is based on a big spreadsheet I built of 2008 Advanced Placement Test results, and has lots of graphs (click on this one to make it readable — this one shows something I’ve never seen before: What percentile does your score rank not out of just the kids who took that AP test, but out of all the 4.3 million kids in America who are the same age as you? As you can see in this graph that starts at the 90th percentile with passing scores in green, orange, and red, a remarkably small percentage passes any single AP test.)

Last week, all across America, high school students who took Advanced Placement (AP) tests in May began receiving their scores in the mail.

So now is a good time to take an in-depth look at this rite of passage. It’s grown remarkably popular. The number of AP tests taken rose from one million in 1998 to approaching 2.7 million in 2008.

This article serves both parents wondering what their kids’ AP test strategy should look like, and citizens wanting to learn more about testing so they can evaluate Judge Sonia Sotomayor’s anti-objective examination decision in the Ricci case. (Her Senate hearings begin Monday). …

Although the College Board is responsible for both the Advanced Placement tests and the much-denounced SAT, the APs have, so far, largely escaped criticism for “disparate impact:” i.e. Non-Asian Minorities doing badly. That’s mostly because few have bothered to look as rigorously at the numbers as we’ll do here.

If you are wondering how your kid’s scores from last May compare to whole population, rest assured that a 3 will put him or her in the top 5 percent of the country on any test and in the top 1 percent on many tests.

Above is my graph “2008 AP Scores by Percentile” (click on it to make it big enough to read) For example, U.S. History (the third bar down) is the most widely attempted AP test. Yet, it’s not even tried by 92 percent of the 4.3 million kids in each year’s age cohort. And less than half of those eight percent who try it succeeds in passing it. (By the way, you only get to take each AP test once in a lifetime.)

The most widely passed test in 2008 was English Literature, with 189,000 young people scoring 3s or higher. That sounds good; however, 189,000 is merely 4.4 percent of the relevant population.

As you may have noticed by now, I’m not the most happy-clappy commentator when it comes to evaluating the intellectual capabilities of today’s youth. Yet, even I have to concede that it wouldn’t be impossible to, say, double that 4.4 percent passing rate on English Lit. The key step would be for whites in the middle of the country to imitate Asians on the coasts (currently, Asians take three times as many AP tests per capita as do whites): become more confident about signing up for AP tests and more industrious in studying for them. Asians aren’t exceptionally great at English Lit—but, currently, 9.7 percent of Asians pass that AP versus only 5.4 percent of whites.


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From the New York Times:

Trial by Firefighters
by Lani Guinier and Susan Sturm

… But the Supreme Court’s 5-to-4 decision last month — that New Haven should not have scrapped the test — perpetuates profound misconceptions about the capacity of paper-and-pencil tests to gauge a person’s potential on the job. Exams like the one the New Haven firefighters took are neither designed nor administered to identify the employees most qualified for promotion. And Ms. Torre’s identity-politics sloganeering diverts attention from what we need most: a clear-eyed reassessment of our blind faith in entrenched testing regimes.

New Haven used a multiple-choice test to measure its firefighters’ retention of information from national firefighting textbooks and study guides. Civil service tests like these do not identify people who are best suited for leadership positions.

This one sentence is the most interesting part of the op-ed: Sturm und Guinier give away the hushed up fact that “civil rights” — as currently understood by, say, Sonia Sotomayor — is an assault on America’s once proud tradition of civil service reforms.

As you’ll recall, when a disappointed government job-seeker assassinated President James Garfield, elevating the Republican ringmaster of the spoils system, Chester Arthur, to the White House, a national outcry against the politicization of lower level government jobs forced Arthur to sign a major Civil Service bill.

Objective written tests for would-be government employees originated in Imperial China, and the idea was transmitted to Europe by early Jesuit missionaries, such as the great Matteo Ricci, who were impressed by how much better China was administered than their own countries. The Chinese tests were not seemingly all that “job-related” — they consisted of questions requiring elegant essays on the Confucian classics, with bonus points for artistic calligraphy. That doesn’t, at first glance, seem to have much to do with, say, keeping the Grand Canal dredged and open to shipping. But, of course, they were tests of IQ, literacy, and diligence, which predicts a lot more about job performance than, say, who you know.

Civil service testing in the U.S. consistently improved in the 20th Century, with the PACE federal civil service test introduced in the mid-1970s being a masterpiece of state of the art social science.

Objective civil service benefited blacks in the first half of the 20th Century, with the heart of the black middle class settling in Washington D.C. because they could get federal jobs by passing blind-graded written tests.

However, as minority political power grew, minorities stopped wanting blind-graded testing extended to fight bigotry and instead wanted it rolled back to benefit themselves over more qualified job applicants. Thus, in January 1981, the outgoing Carter Administration signed a consent decree in the Luevano discrimination case junking PACE, and promising that the federal government would replace it in the future with a test that would be both predictively valid and have much less disparate impact. Of course, 28 years later, the federal government, despite its vast resources, has never been able to come up with that mythical replacement test. So, federal hiring has been based ever since on a hodge-podge of evaluative techniques, with unfortunate consequences for the competence of the federal government.

The most important skills of any fire department lieutenant or captain are steady command presence, sound judgment and the ability to make life-or-death decisions under pressure. In a city that is nearly 60 percent black and Latino, the ability to promote cross-racial harmony under stress is also crucial.

I dunno. I kind of think that knowing what the hell you are doing has something to do with leadership. And, how, exactly does promoting minorities who know less about what they are doing into leadership positions over whites promote “cross-racial harmony under stress”?

Look, I think a reasonable argument could be asserted that police jobs are so inherently political (as the etymological roots suggest) in terms of interviewing suspects and witnesses and the like that a racial quota system might make, sometimes, police departments more effective. That’s a much, much harder argument to make plausible for fire departments, however, since fires don’t have race.

Fire departments, like most government agencies, are monopolies, so they aren’t inherently incentivized by market competition to hire the most effective managers and employees. Thus, strict civil service rules have been developed to produce objective competition for jobs. The diversicrats like Guinier and Sotomayor hate blind-graded competitions, precisely because they are honest and fair.

These skills are not well measured by tests that reward memorization and ask irrelevant questions like whether it is best to approach a particular emergency from uptown or downtown even when the city isn’t oriented that way.

Jeez, this uptown / downtown question is going to be the Regatta Question of the next three decades, isn’t it? Instead of calling these kind of specious talking points “folklore,” we should call them “elitelore.”

As far as I can see from this essay, “uptown/downtown” is the entire factual content of their critique of the New Haven test.

The Civil Service Board in New Haven declined to certify the test not only because of concerns about difference in scores between black and white firefighters but also because it failed to assess qualities essential for firefighting.

C’mon, stop yanking our chains. The city spent a huge amount of money having a good test devised. Read Alito’s opinion for the full behind the scenes play by play. The politicians only decided to change the rule after they found out what the score was. That’s a violation of Hammurabi 101.

As Justice Ruth Bader Ginsburg noted in her dissent, tests drawn from national textbooks often do not match a city’s local firefighting needs.

May I respectfully suggest that Ruth Bader Ginsburg doesn’t know much about fire department testing. Moreover, she’s not interested in learning. Look, New Haven spent $100k having the test customized, so that’s wildly misleading. Personally, I suspect a national test would have worked fine.

The point of the customization is to get minority leaders, such as the black guy who is #2 in the NHFD, to agree that the test is fair and valid — which he did. As Alito pointed out, the mayor’s staff maneuvered to keep the black deputy chief’s opinion of the test’s fairness hushed up.

Most American fire departments have abandoned such tests or limited the multiple-choice format to 30 percent or less of an applicant’s score. In New Haven, the test still accounted for 60 percent of the score.

Gosh, why do you think so many fire departments have gone over to subjectively graded tests where the judges can see the race of the applicant? In order to racially discriminate. (This really isn’t that complicated.)

Compounding the problem, insignificant numerical score differences were used to rank the firefighter candidates.

This is the kind of thing that people say after the game has been played and they know the
outcome. “Hey, when our would-be tying baserunner got tagged out by the catcher at home plate with two outs in the 9th inning, he was only 3 inches from scoring, so therefore, there should be like a 3 inch wide penumbra around home plate that counts the same as home plate, so we shouldn’t have lost!” Obviously, when you put it that way, you can see the special pleading involved. But people don’t think as rigorously about law and public policy as they about baseball, so this kind of sophistry is very appealing to the Who? Whom? crowd.

Guinier rolls on:

What should a city do when its promotion test puts a majority of its population at a disadvantage and is also unlikely to predict essential job performance? People who excel on such a test may expect to be promoted. But testing should not be about allocating prizes to winners. No one has a proprietary right to a particular open job, even if that person worked hard preparing for a test.

There’s a basic rule of ballfield fairness that you don’t wait to see what the final score is and then change the rules to benefit one side.

When a city replaces a bad test, as New Haven wanted to do, the employees who did well on it do not lose their right to compete for promotions; they merely need to compete according to procedures that actually identify people who advance the mission of saving lives and property — and enhance the department’s reputation in the community for treating all citizens with respect.

All the evidence that it was a “bad test” was ginned up post hoc, after the results were in. The city had spent a lot of money to have a legally defensible test, but, having seen the results, it junked it.

Yet many Americans believe so strongly that tests are fair that they never question the outcomes, especially when those outcomes conform to stereotypes about people of color. Such preconceptions lead to the conclusion that blacks or Latinos who don’t do well must lack individual initiative or ability.

I wonder where those stereotypes come from?

The basic statistical fact is that, relatively on average, blacks and Latinos lack individual initiative and ability. But you can get Watsoned out of your job for pointing that out in public.

As the plaintiff in the New Haven case, Frank Ricci, declared, “If you work hard, you can succeed in America.” His lawyer went further: White officials who voted for a better assessment system must have been lowering “the professional standard of competence,” she said, “for the sake of identity politics.” Yet, in New Haven, no one was promoted instead of the white firefighters.

Jeez, the politically favored folks got “acting” promotions. Can’t the NYT afford better dissimulators than these two?

In fact, many fire departments with a history of discrimination, like New Haven’s, still stack the deck in favor of candidates who have relationships to people already in the fire department. Those without $500 for the study materials or a relative or friend from whom they might borrow the books were put at a disadvantage.

Those damn “fire buffs” are racist because they try hard to learn their jobs.

Moreover, it was the firefighters union — which sided with the white firefighters in the Supreme Court — that negotiated the contractual mandate giving disproportionate weight to the multiple-choice test. Those negotiations occurred two decades ago when the leadership of the department was virtually all white.

So, the guys who will be risking their lives under the officers wanted the officers selected by a method that is at least 60% objective and blind-graded. You’ll note that the 40% that was oral was rigged by the city in 2003 by having two out of three judges on the panels be minorities.

Taking this into account, after five days of public hearings, Malcolm Webber, one of the white members of the New Haven Civil Service Board, said: “I’ve heard enough testimony here to give me great doubts about the test itself and the testing — some of the procedures. And I believe we can do better.”

Oh, come on… Please read Justice Alito’s account of what really happened in this charade.

Unfortunately, the Supreme Court blessed entrenched testing regimes that do not advance public goals and fell for the story about identity politics run amok. That doesn’t mean, though, that cities need to hire and promote firefighters who are “book smart” but “street dumb.”

Fortunately the court left room for municipalities to develop alternative assessments to promote people with the skills needed to advance public safety in a diverse citizenry. Indeed, most American fire departments have already rejected written tests in favor of “assessment centers” that simulate on-the-job challenges and focus on problem-solving in the relevant context. In so doing, city officials demonstrate that their decisions are wiser than the Supreme Court’s.

In other words, let’s use testing methods where the judges can see the race of the applicant, so a proper thumb can be put on the scale.

Lani Guinier, a Harvard law professor, and Susan Sturm, a Columbia law professor, are the authors of “Who’s Qualified?”

The jokes write themselves.

(Republished from iSteve by permission of author or representative)
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My new column about the Sotomayor hearings scheduled to start on Monday are up.

Once again, my best suggestion for dramatizing Ricci v. DeStefano is for the Republican senators to call Mayor John DeStefano of New Haven as a hostile witness.

The witness lists released today includes Frank Ricci and Ben Vargas, the Hispanic plaintiff in the suit who was violently assaulted and knocked unconscious in 2004 in a racial assault for standing up for his legal rights. But no mayor of New Haven.

The Democrats are calling as witnesses the mayor of New York and a baseball player, whose most famous legal experience was getting sued for $1.8 million by three women to whom he exposed himself while in the bullpen.

Here are a few of my questions for Judge Sotomayor:

- Much as Chief Justice John Roberts asked during oral arguments over Ricci… Can you assure us, Judge Sotomayor, that your decision in Ricci for the City of New Haven would have been the same if minority firefighters scored highest on this test in disproportionate numbers, and the City said, “We don’t like that result, we think there should be more whites on the fire department, and so we’re going to throw the test out?”

- On the South Wall of the Supreme Court Building’s courtroom are carvings of the “great lawgivers of history.” The second earliest lawgiver depicted is Hammurabi, king of Babylon, who is honored for carving the laws in stone and putting them up in public—which meant that even the king couldn’t change the laws after the fact to suit his convenience. Why should Mayor DeStefano enjoy the privilege that King Hammurabi denied himself: to see what the final score turned out to be, then change the rules of the game?

- In the Obama Administration’s friend of the court brief to the Supreme Court on the Ricci case, the Obama Administration called for your decision for summary judgment in favor of Mayor DeStefano to be overturned and the Ricci case to be remanded to local district court for retrial on the facts. Why did you vote for a more extremist outcome than the Obama Administration later called for?

Read the whole thing

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Although there are still pockets of injustice in America, such as those blue collar families in the New Haven area who keep minorities down by encouraging and instructing their own sons in the study of how best to rescue people from burning buildings, it’s heart-warming to see that a complete outsider like Emily Bazelon can become the MainStream Media’s all-purpose Supreme Court oracle, despite her suffering from such unfair hindrances as being a woman, a relative of best-selling feminist Betty Friedan, the granddaughter of the most powerful non-Supreme Court judge in America during her childhood (David Bazelon), having some kind of wacky Truman Capote Creative Writing fellowship at Yale Law School, and suffering from PCS (Pervasive Cluelessness Syndrome).

In this long interview in the New York Times, Bazelon asks Ginsburg the kind of fearless, hard-hitting questions you’d expect from her, such as:

Q: Can I bring up the Ricci case, brought by the New Haven firefighters?

In her unintentionally revealing way, though, Bazelon does allow us to get an eye-opening view of Judge Ginsburg’s judicial philosophy, which, to summarize the interview, would appear to consist primarily of:

Q. Who?
A. Women!
Q. Whom?
A. Men!

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Prominent man of letters Walter Kirn writes an essay in the New York Times Magazine “Life, Liberty and the Pursuit of Aptitude,” in which he explains (to the extent that “explain” can be used to characterize his effort):

1. He wants you to know that he got very high SAT scores, which helped get him into Princeton
2. But he’s not all stuck up over it; in fact, he says he’s really not that smart
3. Women of Color worked much harder at Princeton than he did
4. So, Sonia Sotomayor was right about Ricci
5. Now that he’s long graduated from Princeton, he sort of thinks that his place should have been given to “another Sotomayor.”
6. Walter Kirn, a frequent contributor, is the author, most recently, of “Lost in the Meritocracy: The Undereducation of an Overachiever.”

It’s always fun to learn about people on Wikipedia. One thing you learn is that it’s easier to theoretically give up in the name of diversity privileges you got in the past than to give up in actuality privileges you are getting in the present. Wikipedia reports that Kirn has two academic jobs that no doubt he could have foresworn so that “another Sotomayor” could have had them instead of him, but, for some reason, he didn’t:

In addition to teaching nonfiction writing at the University of Montana, Kirn was the 2008-09 Vare Nonfiction Writer in Residence at the University of Chicago.

Kirn, who has published seven books (two of them have been filmed), appears to have had something going for himself besides just his SAT scores:

Kirn married Maggie McGuane, a model and the daughter of actress Margot Kidder and novelist Thomas McGuane, in 1995. Kirn was 32 at the time; McGuane was 19.

Margot Kidder, who played Lois Lane in the original “Superman,” was one of the great beauties of the 1970s. She was married from 1975 to 1976 to the then-promising novelist Thomas McGuane during his “Captain Berserko” phase as a Hollywood screenwriter and director (92 in the Shade). Glamorous in-laws, but perhaps not the most stable ones: Kirn’s ex-wife writes in the current Vogue:

Nor did I have role models of frugality to draw on: My mother, who raised me with both an excess of funds and socialist-leaning ideals [one of her mother's boyfriends was Pierre Trudeau], likes to joke that she considers wealth the way most view bacterial infections—to be gotten rid of, before it has a chance to grow.

Apparently, the Kirn-McGuane marriage didn’t end all that amicably. The New York Observer reports:

Mr. [Jay Bright Lights Big City] McInerney was standing with Maggie McGuane, the daughter of acclaimed writer and legendary partier Thomas McGuane. … Mr. McGuane’s daughter said her father considered his drinking days “invisible—never happened.” She used to be married to the writer Walter Kirn. “He used to be a big drinker, but now he’s a teetotaler, too,” said Ms. McGuane, who resides in Montana and works as a journalist. “If I had any message, it would be ‘Beware of the teetotaler.’ Because they’re absolutists, and they can be a little dangerous.”

It turns out that Kirn might be a little personally biased about the Ricci white firefighter case, since, judging by Jezebel‘s brusque summary of Maggie McGuane’s 2007 article in Vogue about how her boyfriend’s son is enlisting in the military, his ex-wife may have cuckolded him with a white firefighter:

The things you learn when you divorce your raging a****** literati husband to marry a firefighter! The story goes on to talk about how sometimes we forget that there are actually white people in the military with moms who take yoga and everything, and that firefighters don’t necessarily think it’s a stupid idea for their sons to enlist in the army which can be a BIG turn-off if you are a wealthy writerly type who is married to one. (Quote: “Our once fiery romance grew closer in temperature to Haagen-Dazs.”) But then when Maggie’s brawny new fireman husband watches his son go to Kentucky and thinks about maybe what it would be like if he replaced “Kentucky” with “Ramadi” he too realizes Operation Iraqi Freedom was a bad idea, just like she was telling him all along, and even starts to attend peace protests, so it’s really okay that rich people don’t have to shoulder as much of the burden as poor people because if poor people didn’t lose so many lives in wars they wouldn’t realize how f*****-up American foreign policy is, which rich people know about just by reading erudite publications such as Vogue.

(Republished from iSteve by permission of author or representative)
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Here’s an old column I wrote in for Taki’s Magazine on May 20, 2009, that I forgot to post a link to because I was traveling:

Following up on Jared Taylor’s article, the Ricci reverse discrimination lawsuit now before the Supreme Court is not one of those “hard cases” about which law students are warned. There is nothing anomalous about the discrimination against the New Haven firemen …

Instead, what’s unusual is that we’re even hearing about the victimization of these unprotected majorities.

I suspect that’s largely because Frank Ricci and his friends are firemen. Firefighters show up more than any other profession in prominent reverse discrimination suits, perhaps because they enjoy civil service protection, unions, and, most of all, public admiration.

In a culture that increasingly holds blue-collar workers in contempt, firemen are the exception to the rule. They risk their lives for you, and they don’t give you speeding tickets. As the cops in Joseph Wambaugh’s LAPD novels are always telling each other: If you really wanted people to like you, you should have been a fireman.

It’s worth exploring some of the more subtle game theory reasons why there is so little public outcry against discrimination against white males other than firefighters. Why is Ricci close to being the exception that proves the rule?

First, affirmative action targets marginal white males.

For example, although white guys who are already firemen have a fighting chance of staving off unfair treatment in promotions, white guys who just want to become firemen are discriminated against in hiring with impunity. …

Cheating an already employed white fireman out of a promotion is dicey because he doesn’t go away. He’s still a fireman. So he hangs around, he complains, he organizes other white firemen to complain to their aldermen about why the politicians aren’t releasing the results, maybe he talks his sister-in-law’s cousin who is a file clerk in Personnel into Xeroxing the secret results of the test and leaking it to him. And then he hires a lawyer.

In contrast, cheating some random white guy off the street out of his lifelong dream of becoming a fireman is a piece of cake: “Don’t call us, we’ll call you.” What can this marginal man do about his suspicions? Not much. He’s not connected.

Moreover, announcing that you are a victim of racial preferences is normally to admit you are marginal, that you would have only barely made the cut anyway. How uncool is that? [Notice that the New Haven plaintiffs were all the top scorers, because the entire test got ham-handedly thrown out. If the New Haven politicians had been subtler, more expert in their racial discriminating, they would have victimized just the marginal white scorers.]

Similarly, affirmative action, by definition, doesn’t impact those who made the cut. Consider Harvard students. While some freshmen may enter Harvard sore that affirmative action might have cost high school friends admission to Harvard, soon they have lots of swell new friends, who, unsurprisingly, are all Harvard students, unlike those losers they used to hang around with in high school who didn’t have what it takes to get into Harvard.

Hence, you don’t see a lot of solidarity in opposing affirmative action.


Read the whole thing there and comment upon it here.

(Republished from iSteve by permission of author or representative)
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As Justice Alito’s concurring opinion in Ricci documented in amusing detail, Frank Ricci and colleagues were the victims of blatant racial discrimination by a black power broker and his allied white mayor in New Haven.

Stanford Law Professor Richard Thompson Ford says, that, well, equal protection of the laws isn’t the point of civil rights legislation. Sure, the laws include a lot of colorblind rhetoric, but the whole point is to benefit blacks at the expense of whites, so it’s a dirty trick for the Supreme Court to read the laws and the Constitution literally and apply them evenhandedly. He writes in Slate:

The plaintiffs in Ricci were undoubtedly sympathetic: hardworking public servants—17 of them white, one Hispanic—who expected that the exam they studied for and did well on would determine their eligibility for moving up the ranks. But their legal argument is the latest in a long-standing campaign to turn civil rights laws against themselves. There’s a striking progression in the attacks on civil rights. In the early 1970s, affirmative action was widely considered to be a logical extension of civil rights principles: Even President Nixon—a man not known for his enlightened racial attitudes—supported it. But by the end of the decade, affirmative action was under attack as reverse discrimination. And now we see the next step in the march against civil rights with the part of federal civil rights law—Title VII—called “disparate impact” that prohibits employers from using promotional or hiring procedures that screen out minorities unless they can prove that the procedure is closely job-related.

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That Justice Ginsburg’s dissent in Ricci managed to get four out of nine votes points out major flaws in both American intellectual life and in the Supreme Court.

Some of what’s wrong with the Supreme Court is structural. Justices used to drop dead of heart attacks before they aged too far into mental decline. By this point, lots of people have heard about the best solution: replace lifetime tenure with single 18 year terms, with the President getting to select two justices for each election he wins.

What nobody knows, as far as I know, is how to get there from here. How do you work out which Justice gets forced into retirement first to make room for new blood? This could be very hard to work out in a bipartisan manner. (If you have any technical suggestions for how the transition should be managed, please put them in the comments.)

Now that the Democrats have complete power in Congress and the White House, however, they can just go ahead an make this reform on their own. I can’t imagine they would, though.

A more subtle defect in the Supreme Court is the lack of adult supervision. We still have the obsolete system of ailing Justices such as 76-year-old Ginsburg (cancer surgery in February) and extremely elderly Justices (Stevens is a ridiculous 89) being assisted solely by clerks who are largely in their late 20s: the senile being aided by the puerile.

Consider the futility of relying on clerks for a complicated topic like testing in the Ricci case. Do you think Justice Ginsburg’s clerks were told the truth about testing when they were in law school? I don’t care what your LSAT score is, to understand the reality behind Ricci, you have to do a lot of self-education and you have to learn about how the world really works. And that takes time. I moved to Chicago at age 23, and from then on I heard a lot about fireman and policeman testing, but it took me until my mid-30s to develop a mature understanding of the subject that wasn’t just based on idealistic assumptions about how things should work. And I’m still figuring out things about fireman testing that make me say, like Huxley reading The Origin of Species, “How stupid of me not to have thought of that.”

Occasionally, we see Justices instead hiring grown-up clerks with some experience of life (Justice Thomas recently hired a clerk who had already made partner at her law firm), but the salary is only around $65,000. (Supreme Court clerks get big signing bonuses from the private law firms that hire them when their year is up, but still …)

What we need is a modest budget (say, $3 million per year across the 9 Justices) to allow each member of the Supreme Court to hire a mature Chief of Staff to manage the clerks, with, say, a three year term.

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Traditionally, the New York Times has the world’s worst Letters-to-the-Editor page, filled with credentialed but clueless poohbahs writing in to say how much they agree with the NYT’s soporific editorials, but they were disappointed that the editorial didn’t include some additional argument so dumb that not even the NYT Editorial board would fall for it.

It indicates just how badly the diversitarians got smoked intellectually on Ricci that even the NYT’s Letters-to-the-Editor section (The Firefighters’ Test: Flawed or Fair?) responding to the paper’s editorial denouncing the New Haven test is pretty good.

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The Ricci reactions have made more evident that liberals are peeved that anybody takes seriously all that language in the civil rights laws about equal protection. In the liberal mind, the specific wording of the laws was just a sham to get them approved. The laws are really simply about “Who? Whom?” Thus, the idea of civil rights laws being used by the Supreme Court to protect the civil rights of white guys like Frank Ricci is an affront against all that is holy (i.e., civil rights laws).

Consider this entry, From Washingto to New Haven, the Rules They Are A-Changin’, on the Washington Post’s XX blog by Nicole Allan, the Slate intern/Yalie who coauthored with Emily Bazelon that long article in Slate entitled The Ladder.

The plaintiffs in the hotly contested affirmative action case Ricci v. DeStefano stood out among the crowd outside New Haven City Hall today. They wore dress blues and wide smiles or poker-faces that occasionally cracked into grins. They were, but for one, white, and they were celebrating their win in a 5-4 decision handed down by a sharply divided Supreme Court.

Mingling on the sidewalk before the conference, plaintiff Frank Ricci posed for photos with his family. Ben Vargas, the one Hispanic amongst the 18 plaintiffs, grinned beneath his sunglasses and crisp peaked cap. Attorney Karen Torre, surrounded by her clients and jokingly donning one of their caps, delivered a statement in boldly Obama-esque fashion: “We had the audacity of hope—that some court at some point would enforce the letter and spirit of the civil rights laws, accord to firefighters the recognition and respect that they deserve, and reject attempts to lower professional standards of competence for the sake of identity politics.”

It took some audacity indeed to invoke Obama in support of a lawsuit that called into question the country’s most significant civil rights statutes. …

I kept thinking about the black firefighters I’ve been talking to over the past few weeks, none of whom I saw at the press conference. After decades and decades of lawsuits founded upon civil rights statutes, they have started to get ahead. Blacks and Hispanics, who make up about 60 percent of New Haven’s population, are now more or less proportionally represented within the rank and file of the city’s fire department. But their efforts to penetrate the upper management ranks have been less fruitful. Currently, only one of the city’s 21 fire captains is African-American. The anti-discrimination laws that once won them spots in New Haven’s firehouses are now the laws that have planted the smiles on Frank Ricci’s and Ben Vargas’ faces. There go the rules, changing again.

As Strobe Talbott wrote in Time in 1982:

Lenin, with his knack for hortatory pungency, reduced the past and future alike to two pronouns and a question mark: “Who—whom?” No verb was necessary. It meant who would prevail over whom? And the question was largely rhetorical, implying that the answer was never in doubt. Lenin and those who followed him would prevail over “them,” whoever they were.

The funny thing is how modern American liberals consider their Who? Whom? mindset not cynical, but sacred.

(Republished from iSteve by permission of author or representative)
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Michael Barone has a good column today on Ricci, Firefighter case shows seamy side of racial politics, which is clearly drawn from my stuff. Considering all the mean things I said about him a number of years ago, it’s big of him to be a reader.

(Republished from iSteve by permission of author or representative)
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About Steve Sailer

Steve Sailer is a journalist, movie critic for Taki's Magazine, columnist, and founder of the Human Biodiversity discussion group for top scientists and public intellectuals.

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