Natch, since the 14 th amendment equal protrection clause was obviously written with the primary intention of protecting white people against discrimination--since that is the only time time "originalists" ever want to use it. Unless thy're installing a GOP preznit, that is.

Natch, since the 14 th amendment equal protrection clause was obviously written with the primary intention of protecting white people against discrimination--since that is the only time time "originalists" ever want to use it. Unless thy're installing a GOP preznit, that is.

Four justices on the high court agreed with her conclusion.

Including the one she's been nominated to replace. It is in that sense a conservative nomination, in that it preserves the status quo.

I'm a white guy. I voted for Obama. (And Clinton and Gore, btw.) And I applaud this decision by SCOTUS. Discrimination, whether it be overt or reverse, is wrong.

in short, sotomayor voted exactly the same way that souter, the justice she is replacing, voted. presumably he's a racist too....

I can foresee a pretty huge market for tests that accidentally aren't passed by anyone but middle-aged white guys...

I'm a white guy. I voted for Obama. (And Clinton and Gore, btw.) And I applaud this decision by SCOTUS. Discrimination, whether it be overt or reverse, is wrong.

It's good to know that you've reviewed the test in question and found absolutely nothing discriminatory about it.

My prediction is that government entities will move away from competitive examinations for hiring and promotion decisions. They'll increasingly use the more subjective means that prevail in the private sector.

I am just curious as to what elements of the test allegedly discriminated against the minorities? I mean were these fire fighting related questions? How do you bias such a test ? Just 'askin - if anyone knows.

"It's good to know that you've reviewed the test in question and found absolutely nothing discriminatory about it."

have you reviewed it? No, I didn't think so ...

but you probably think that tests are by their very nature discriminatory ... right, the SAT, MEDCAT, LSAT, they are all weighted for white folks ...

(p.s. it was up to the city of New Haven to prove that the test was discriminatory: they did not do so. The SCOTUS decision was rather narrowly focused.)

I read many portions of Kennedy's opinion, but not all. It seems his opinion is based on the argument that after the results came out, a community activist challenged the results immediately. The council did have long debates about whether the test was fair or not, but most of their reasoning for rejecting the test was fear that the activist would sue. The SCOTUS essentially said they had a responsibility to test the fairness before administering it, and even more to make a compelling argument that the suer would have a compelling case in his lawsuit. It wasn't enough to fear that they would be sued. It also seems (unless I missed something) that the minority candidates did not complain about the test, except that it covered a lot of areas that, while in the study book, did not apply to New Haven itself.

And all this time I thought their job was to metaphorically (painfully so) call balls and strikes. Silly me.

I am just curious as to what elements of the test allegedly discriminated against the minorities? I mean were these fire fighting related questions?

All you have (had) to show is a disparate impact. A weird score distribution is (was) prima facie evidence, and enough to start litigating.

Paul's comment above is unfortunately exactly correct.

The shame of it is that coverage of this ruling will be all about Sotomayer, and will ignore the chilling effects this ruling will have on preventing systemic discrimination in education, business, government, etc.

There is a long history of standardized tests that have systematically discriminated against nonwhites. My own field, psychology, has an infamous history in the creation of these kinds of tests. The army Alpha and Beta tests, given to millions of recruits to identify people with the necessary intelligence for promotion, etc. have been shown in hundreds of subsequent studies to be discriminatory in practice. This ruling effectively says that that is okay, as long as there is no overt intent in the discriminatory outcome. I would invite you to research a bit about the eugenic motivation of the researchers behind the creation of these kinds of intelligence tests.

This ruling could be used for example, for, Harvard to say that they will only accept legacy students who have at least three generations of family who attended the school. That would obviously be discriminatory in practice by essentially cutting out nonwhites, but as long as there was no evidence of discriminatory intent, would be perfectly acceptable under this ruling.

I'm predicting she'll testify in her confirmation hearings that she AGREES with this result, but that as a lower-court judge bound by existing precedent she and her colleagues were debarred from reaching it themselves. That ought to make some wingnut heads spin around.

The funny thing is that most of these firefighters had fathers or uncles or brothers or cousins who were fire fighters

IT's NOT really a level playing field

For the longest time, the SF Police Dept was essentially Irish
When, they tried to integrate Blacks, Hispanics and Asians there was an uproar
To say NOTHING of women and gays

White guys just ASSUMED that the SFPD was THEIRS
Likewise for th Fire Dept

Anybody think Bush and Quayle got into College on their 'intellectual merits' ??

Discrimination, whether it be overt or reverse, is wrong.

sjw, must be nice to live in such a simple, black-and-white (so to speak) world.

"Discrimination" comes in many forms. Title VII recognizes at least two - disparate treatment and disparate impact (and arguably a third, systemic disparate treatment, which falls somewhere in between).

If an act is discriminatory in its impact, but avoiding that impact results in discriminatory treatment, it is pretty easy to see that there is "discrimination" either way. So viewing Ricci as correct because it prevented "discrimination" is a very narrow view. What Ricci really stands for is that a very narrow majority sees disparate treatment as a more troubling form of discrimination than disparate impact. But both are still discrimination.

I'm predicting she'll testify in her confirmation hearings ... that as a lower-court judge bound by existing precedent she and her colleagues were debarred from reaching it themselves. - Steve LaBonne

That would be fun. Simple answers for simple minds.

Discrimination, whether it be overt or reverse, is wrong. -sjw

I agree with this statement, but it does not support your ignorant conclusion.

The only discrimination in this case is the inherent discrimination in a test which only caucasians passed. The reason why no promotions were given as a result of this test is because the test itself was faulty.

All you have (had) to show is a disparate impact. A weird score distribution is (was) prima facie evidence, and enough to start litigating. -Davis X. Machina

This bears repeating, as many times as it takes, as long as people like sjw, willfully or otherwise, remain ignorant to the facts of this case.

I certainly hope those that were truly discriminated against are preparing their case as we write.

Danp makes a pretty good one-paragraph summation of the case. I seldom if ever agree with the five-man majority that ruled on this, but I can't see how it could have been decided any other way, or why the lower court failed to see the elementary logic. It appears nobody ever accused the test of testers of being biased, only that New Haven was afraid someone might. Living in fear of the possibility of irrational acts is no way to exist, either for individuals or government entities. New Haven's action and the lower court decision upholding it is of the sort that makes liberals look silly, justifiably earns the contempt of conservatives and the general public, and gives unnecessary validation to the many terrible decisions enacted by this SCOTUS majority.

The standard, ever since Duke vs. Griggs, was that if testing had a disparate impact, then it could be ruled discrimination, even if there was no intent to discriminate. It appears the Court has said, disparate impacts are still allowable, but if you think you have had a disparate impact in your testing, you had best prove why before you throw it out.

It will be interesting to see if now African-Americans who didn't get on the promotion list now sue New Haven. I don't see anything in this ruling that says they can't, and that just because New Haven didn't do the work before throwing out the test, that the African Americans who were denied promotions won't.

ericfree, if you haven't yet, read RBG's dissent. i think your conclusion is needlessly unfair to the left. as she points out early on, other cities use tests with more thorough validation that, in use, have not resulted in as imbalanced statistics. she rightly asks why New Haven could not have used one of those. she also does a great job of setting the context, noting this did not occur on a blank slate: firefighting -- including New Haven specifically -- has a long history of overt discrimination, which rightly should make use more sensitive that while people learn not to use epithats, they may manifest their discrimination in more subtle ways.

I'm of two minds about the ruling, but I keep thinking about the "ebonics" flap in California a few years ago. To me, that pointed to a failure of the teachers for not making sure those students could speak and read proper English, not necessarily overt discrimination.

That SCOTUS decision link is dead I think.

"Remember, Sotomayor joined a unanimous appeals court panel in Ricci, and she applied precedent that existed at the time. Four justices on the high court agreed with her conclusion."

I have not yet read the opinions, but this appears to be an incorrect statement. As was stated by Ed Whelan in Bench Memos over at NRO:

"Further, although there is a sharp 5-4 divide among the justices, not a single justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven."

If this is correct, then it would certainly be interesting to hear Sotomayor's reasoning as to why she believed that the grant of summary judgment by the lower court was proper when there were clearly disputed issues of fact about the real reason for the City's decision to scrap the test results.

If it is learned that she affirmed summary judgment because she wanted to sweep this case under the rug to avoid an adverse ruling by the Supreme Court, would that be valid grounds to vote against her confirmation?

As was stated by Ed Whelan... -Chicounsel

Well with such an unimpeachable source from such an honest commenter...

You want to maybe provide actual evidence the justices said that and not just Whelan's assertion?

Wow, supporting your own stupid argument with a quote from NRO? LOL!

If it is learned that she affirmed summary judgment because she wanted to sweep this case under the rug to avoid an adverse ruling by the Supreme Court, would that be valid grounds to vote against her confirmation?

Only for the morons who were already going to vote against her. She'll still be confirmed, because anyone with a brain knows that she was just following the law as it existed at the time.

And the wonderful thing is we can be sure our paid for media will provide all the nuanced aspects of this decision/case like they do about EVERYTHING...

Doubtful:

The only discrimination in this case is the inherent discrimination in a test which only caucasians passed. The reason why no promotions were given as a result of this test is because the test itself was faulty.

'All you have (had) to show is a disparate impact. A weird score distribution is (was) prima facie evidence, and enough to start litigating.' -Davis X. Machina

There was no attempt by the city to determine whether the test was faulty or not, nor what kind of support a litigant's case might potentially have. The majority basically told the city it didn't do its homework, and instead impulsively reacted out of knee-jerk fear of a suit.

Which seems to be a decision supportive of equal protection.

Discrimination, whether it be overt or reverse, is wrong.

Remind me -- in exactly what way did the city's actions discriminate against anyone? No one got promoted, and everyone needs to take the new test.

There was no attempt by the city to determine whether the test was faulty or not... -Matt

Under Title VII, the disparate results of the test is all (well, until today, so was all) of the proof required to determine the test was faulty.

Throwing out the test and establishing a new one is not discriminatory because it treats everyone equally; upholding the results of a test shown the be discriminatory is nothing short of blatant racism and the very definition of judicial activism.

But thankfully the court didn't let the law stand in their way of coming to the defense of the oppressed white man. Nice precedent we've established today. Don't be surprised when a minority never passes a test for a promotion again now that they've been striped of the backing for their legal recourse.

I am just curious as to what elements of the test allegedly discriminated against the minorities?

But that's the wrong question. With such skewed results, under the law as written, the test is presumed biased, and the burden of proof is on the city to prove it isn't.

Asking what was wrong with the test won't do -- instead, demonstrate that the test is, in fact, okay.

And Chicounsel citing NRO -- truly hilarious. You should ask for a refund from the gumball machine you got your alleged law degree from.

Looks to me like:

The city read Gregg v. Duke Power:

Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices....

and punted.

Right up until they punted, and after, the courts hadn't definitively said 'You can't punt'.

Zeitgeist, Ginsburg makes a good point, but it's irrelevant to the case as it stands. There has never been any specific discrimination proved in the New Haven case. If she wants to take on the case as lawyer for a plaintiff, fine, but should that be the role of a Supreme Court, or even appeals court, Justice? I don't think so.

"All you have (had) to show is a disparate impact. A weird score distribution is (was) prima facie evidence, and enough to start litigating." This is the logical equivalent of saying "My team lost, so the game is rigged." Goes down well in the team bar afterwards, but doesn't stand up so well in the real world. The goal is to be fair to everyone. No exceptions.

This is the logical equivalent of saying "My team lost, so the game is rigged."

Yeah, but Title VII and the case law say that if my team lost, the game is rigged.

And that's what the courts have to work with.

There has never been any specific discrimination proved in the New Haven case.

How many times do we have to remind you that there doesn't have to be?

With the test results that badly skewed, the law presumes the test is biased, and the burden of proof is on the city to prove it isn't.

The goal is to be fair to everyone. No exceptions.

Right. And again -- no one got shown favorable treatment. No one with lesser scores got promoted over those with higher scores. The test got thrown out, no one got promoted, and everyone will now compete on a level playing field.

Fair to everyone -- except perhaps a little uncomfortable to the sense of white entitlement.

. . . And in all the time since the case was filed, has anyone investigated to see why the testing came out the way it did?

In the last New York Firefighters case, as I recall, the supposedly unbiased scores were not remotely unbiased: several layers of senior white New York Firefighters were responsible for judging the candidates and assigning the numbers. In other words, the same people who were offended that non-white firefighters were included in the statue honoring the fallen after 9/11. They were proud that they were running an all-white shop and wanted to be sure everyone knew it.

ericfree -

you can't forget, however, that the reason the rules were set to presume certain facts were based on discrimination is because there was extensive legislative fact finding when Title VII was passed showing that there was a lot of actual discrimination. the idea that a "fair" test could have a racial imbalance in results might, in a world that had never seen discrimination, suggest abosultely nothing more than bad luck. but the bad drop for the pre-Ricci assumption of a discriminatory basis for disparate impact was based in real-world facts.

one might argue (not me, I should add) that facts have changed enough since 64, or 72 when Title VII was extended to governments, or even the 1991 reauthorization and significant amendments that presumptions based on outdated legislative findings are improper. That would, however, seem to be the proper role for a legislature -- making new factual findings, deciding its own prior findings were no longer operable -- and not a court.

which is to say that while no righty will likely ever admit it, today's Ricci ruling appears to be the product of activism, or legislating (re-writing Title VII) from the bench.

Does anyone else think the "disparate impact" issue is one of the biggest piles of steaming B.S. in the history of the law? If you gave me a exam for a promotion on something I knew little about because of my background, say the history of rap music, I guarantee you I would study my butt off and do as well as anyone with a "cultural advantage". And besides this is a firefighters exam we are talking about. How, and please give examples, could questions be designed that put anyone besides those that didn't prepare at a disadvantage? Thanks to the supreme court and its ruling today for providing a small bit of sanity in a sea of inanity.

"The only discrimination in this case is the inherent discrimination in a test which only caucasians passed. The reason why no promotions were given as a result of this test is because the test itself was faulty."

False. From the AP report:

"Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion."

Are these proportions (41/22/18) out of sync with the proportions of the whole group that took the exam? Anyway, the fact that nearly as many non-whites as whites passed the exam makes it hard to just assume there was something 'faulty' with the test.

Ok, whites did pass the exams at a higher rate than blacks and hispanics...more so the lieutenant's exam than the captain's exam. But many more whites took the exams (68 out of the 118 test-takers) so it was nearly inevitable that the top 10 scorers on an exam would include at most only a few blacks or hispanics.

Here's a fact that looks pretty bad for the city's case, which I haven't seen discussed anywhere: The oral examination panels were deliberately constituted so that 2/3 of the examiners were always minorities.

Shucks.

I agreed with Sotomayor on this one.

zeitgeist: which is to say that while no righty will likely ever admit it, today's Ricci ruling appears to be the product of activism, or legislating (re-writing Title VII) from the bench.

No. There is a clash of conflicting aims in the Civil Rights laws, and most judgments of cases that make it to the Supreme Court depend on the Justices' judgments on which side has met some standard of evidence.

The point of affirmative action is to ensure that the procedures in place (for hiring and promotion) do not contain, accidentally or by design, bias against historically underrepresented groups. It is important to remember that the "historically underrepresented" groups were excluded on purpose, so in most cases the burden of proof is to show that an apparently biased result was not a consequence of a pre-existing explicit bias. When the New Haven fire department looked at their results, they concluded that they could not show that the procedure was unbiased, so they decided to try a "do-over". It was not an easy call, but I agreed with Sotomayor and the Court liberals.

smintheus - The AP numbers you quote do not agree with those on the ruling (pages 9-10 of the pdf linked above). There they list 43 Whites, 19 Black and 15 Hispanic taking the LT test with 25/6/3 passing respectively. On the captain test there were 25W, 8B and 8H who took it, with 16,3 and 3 passing. So total Whites had 41 of 68 pass. Blacks -9 of 27 and Hispanics 6 of 23.

sjw: (p.s. it was up to the city of New Haven to prove that the test was discriminatory: they did not do so. The SCOTUS decision was rather narrowly focused.)

That's the way that the majority saw it: which side had the burden of proof, under the law. They thought that in this case the burden rested on those who claimed that discrimination existed. Put differently, what you call a "p.s." was the issue that the court decided, not a fact of the matter.

I agreed with Sotomayor on this one.

No one cares what a dishonest Republican water carrier like you thinks, Marler, even when you agree with us.

No one is fooled by your pretense as an honest commentator. Your record of dishonesty in the service of the Republicans who provide those sweet, sweet tax cuts is far too extensive. Shame on you, Marler.

zeitgeist: firefighting -- including New Haven specifically -- has a long history of overt discrimination, which rightly should make use more sensitive that while people learn not to use epithats, they may manifest their discrimination in more subtle ways.

And that is why procedures with "disparate impact" arouse suspicion.

"How, and please give examples, could questions be designed that put anyone besides those that didn't prepare at a disadvantage?"

You're not going to get any examples, because there aren't any. Ambient racism and "stereotype threat" play the same role in modern racial liberalism that "phlogiston" did in pre-modern physics: an unprovable quid, similar to the "then a miracle occurs" middle step in that Far Side cartoon.

smintheus,

I apologize for the semantics misnomer, but when I said 'passed' the test, I meant those who were expecting promotion. Since that was the intended result of taking the test, I expect that in the minds of those ineligible for promotion that the fact they 'passed' the test is irrelevant, or more precisely, it's placating bullshit intended to make them feel better about the promotion they never stood a chance of getting because of their skin color.

"anyone besides those that didn't prepare"

I suppose that isn't really the point, though. Even if disparate impact shakes out along racial lines only as it correlates with preparation time, to a lot of liberals that wouldn't matter.

Proportional representation (or at least, closer to PR than we have now - hey, Grand Bargain: let's split the difference?) in the professions, in government, etc., is a goal in itself. This is why the earlier commenter who said the "point" of AA was to make sure there's no lingering discriminatory "ghost in the machine" was wrong.

The diversity/"clear pathways to leadership," O'Connor-blessed legitimate purpose for AA, from the Michigan cases, will be the path for lefty justification for AA in the future, my guess is. It's already there in Seattle Schools.

It's more honest - rather than genuflecting between the ghost of ambient phlogiston, pretending that we're remedying past wrongs, which is a negative definition of the goal, liberals should instead just say that a multiracial society needs multiracial firefighters, judges, etc. Own it, because the persuasive force of the "remedial" argument is weakening.

blah, blah, blah... this is political hay for republicans and they will exploit it to the nines; truth and facts won't matter one iota; the ruling had everything to do with politics; the outcome was never in doubt, nor the makeup of the SCOTUS opinions.

The US system of governance is failing as rational thought and adherence to principal (at least occasionally) is replaced with never ending tribalism.

Danp: You're right the AP goofed in toting up the numbers.

doubtful: Everyone who passed the test was eligible for promotion from the highest scorers to the lowest. Promotions were available when a position opened up, but only the top 10 or so scorers were more or less guaranteed a promotion. Do you have any actual evidence that the lower scorers were passed in order to make them feel better, or that "they never stood a chance of getting [a promotion] because of their skin color"? Because you seem to be asserting things that nobody ever attempted to prove in court.

It's very simple, Knemon. The law says that a test with such disproportionate results is presumed biased, and the burden of proof is to show that it isn't.

The city evaluated the test and decided it couldn't do so, but by all means feel free to try. Put up or shut up.

Jackass.

Sounds like it's time to write the words "disparate impact" into Title VII.

i believe it is already there - check 42 USC 2000e-2(k).

So, once again, the Literalist Textualist plain-reading so-called Conservatives CHANGED LAW by over-riding precedent.

Every day, in every way, they gradually erode America because they really don't like it.

Yes, it was a difficult case with possibly vague law. They still overturned (not just Sotomayor and the panel she sat on, but) the precedent law.

Justices Scalia, Thomas, and Roberts should be impeached. They are partisan hacks whose are trying to make their ideology law.

"so-called Conservatives CHANGED LAW"

Which law?

What the activist, conservative wing did was overturn decades of precedent and settled case law.

The Birmingham, Al fire department had a "facially neutral" written and physical exam for potential firefighters. Strangely enough, Birmingham was 65% (from memory) Black - but not one Black applicant made it past the written exam. See, Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989)

This is known in law as a disparate impact case. In the Birmingham firefighters case the plaintiff's class (long history and many difficult issues in this case) of present and future Black applicants argued that while the test was neutral on its face, statistically, the test clearly discriminated in a manner that excluded a protected class (identical facts to Ricci, save that in Ricci the city was trying to follow the Wilks standards.). The ruling in Ricci effectively overrules the use of statistical analysis in discrimination cases.

The Court has not limited the new bar on statistical analysis to race. Ricci applies across the board. Today we are facing massive Reductions in Force (RIF) across the nation. RIFs are supposed to be neutral - but, we have a significant new tool for Business to create facially neutral selection criterion for their RIF only to have the Supreme Court deny potential plaintiffs the right to use statistical data to refute the neutrality of a RIF plan. In short - this Supreme Court has retrenched both the tools and the law in Title VII and the Age Discrimination in Employment Act litigation. Two weeks ago the ADEA's standard of proof was changed to the "but for" standard. But for the age of the Plaintiff, no discrimination would have occurred. Today, all it takes is a few bad evaluations and out you go.