Or how not to make social policy.

There have been many newspaper reports in recent days on the upcoming, April 21, hearing by the Supreme Court of  Ricci, et al. v. DeStefano, et al. –  the Hartford Current and the New York Times among them. At issue is a 2004 promotion test within the New Haven Fire Department. Of the top 15 scorers, 14 were white and 1 Hispanic. The city, citiing “disparate impact” according to race, nullified the test results. Those who lost their chance for promotion to a command position have sued for violation of Title VII of the 1964 Civil Rights Act, prohibiting discrimination on the basis of race in hiring, as elsewhere.

The usual suspects have lined up filing amicus briefs on both sides of the case: the ACLU and NAACP, among others, on the side of the City of New Haven, and you’ll find the CATO Institute and the cleverly named ACRU (rights, you see, not liberties) – with Kenneth Starr and Robert Bork associated – supporting the firefighters. So far everything is predictable – the issues and their advocates – and the Times noted that Chief Justice Roberts, an opponent of the “sordid business” of “divvying us up by race,” remarked in a 2007 decision, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But Roberts’s remark, on the one hand, is so remarkably disingenuous. It suggests – what a brilliant legal mind like his fundamentally understands is untrue – that society is like a perfect vacuum, with none of the frictional qualities that lead to decay from an ideal state. Friction entails consequence – deceleration, a spark (a fire) – and what are the courts about but the adjudication of consequence? So even had ex-slaves received their forty acres and a mule, would not the “ready, set, go” after the Civil War required acknowledgement of disparate (to use that word) starting lines? And how delayed was that? Nonetheless, credit opponents of affirmative action with a certain ideological consistency: it is government that befouls everything, even “discrimination on the basis of race,” so that when it is woven into the fabric of society, including the fraudulent concerns of Jim Crow laws, it is the unfortunate product of the human freedom to be led far from God. When, as opponents perceive it, discrimination is in the letter or spirit of the law, it is an abomination that must be ended.

As I like to surprise my students, though, to discriminate, in its primary meaning, is simply – or not so simply – to make distinctions. We can’t think without doing so. To discriminate, prejudicially, according to race is a secondary, acquired meaning of the word. Affirmative action, when done well, enacts the first meaning of the word: in the recognition of history and prior injustice it seeks to redress a wrong and cannot do so merely by pretending that the world starts now.  Critics try to reduce affirmative action to nothing more, ultimately, than the second meaning of discriminate. They fail, that is, to discriminate.

On that other hand, affirmative action, like most attempts to address social ills, was never thoroughly conceived. Even at its best, it should induce discomfort. It is a form of race consciousness we would be better off not needing, and as the record shows, from the 1978 Bakke case on, it has been socially problematic. Repeatedly, innocent individuals have been asked to pay a price in their lives, ambitions, and welfare in order to achieve a larger social outcome. That outcome, however socially justifiable, is always an unfairness to the individuals sacrificed to the greater good. How long is it believed that legal attention to disparate outcomes will be necessary? What is the ultimate, ending goal? Or is there no intent to end it? Will we always watch the percentages, a hundred, two hundred years from now? For how many groups? Will we ever accept outcomes that as a matter of chance or particular, unbiased circumstance produce numerical imbalances or incommensurate percentages?

Reports the Times, “Mr. Bolden [New Haven’s acting corporation counsel] added that he had sympathy for Mr. Ricci [the lead Petitioner]. “There’s no question that there are people who are disappointed,” he said. “But disappointment doesn’t lead to a discrimination claim.”

How heartfelt of Bolden. But disappointment is not scoring high enough on the test to achieve a long-desired promotion. Scoring high enough but having the promotion taken away because of the color of your skin, whatever the grand moral justification, is not “disappointment.” That is another feeling. African-Americans know it well.

New Haven claims that it did not nullify the results of the test out of fear of legal action, which would clearly point to its altering the outcome purely on the basis of the racial makeup of the top scorers. Instead it has discovered, only after the test results were revealed, that the test was flawed. The usual suspects are happy to agree, and arguments as to the flaws are presented.

Let’s be clear about one crucial issue, however. This test, its results, and the law suit do not emanate from a city and a fire department fraught with racism and only now being taken to task. If you read some of the briefs (And why would you? I obviously have time on my hands, and while I’m not a lawyer, I play one on my blog), particularly the Petitioner’s and Respondent’s briefs, you learn from the Petitioner that experts in test development were employed, who worked for months in consultation with “minority incumbents” of the New Haven fire department. But as there are statistics and damned statistics, there are also experts and your damned experts, so, of course, those for the Respondent make claims as to the errors made by New Haven’s expert developers.

I’m not even a testing expert on my blog (though I’ve developed and given quite a few in class), but it is worth pointing out that none of the errors cited in the Respondent’s brief are claimed by their nature to be the sort that would produce racially disparate outcomes. Read that sentence again if it didn’t strike you, because one would think it crucial, and I’ll return to it. Among the less esoteric flaws claimed about the test is that the it might have, in fact, more accurately tested a skill in “rote memorization” than other necessary skills. This is a common criticism of tests that are challenged. But isn’t it arguable that by the time one might reach the level of a command position in a big city fire department – by which point fair and culturally unbiased testing should be removing impediments to success but not providing an assist – one should have and well might need a developed mental capacity for rote memorization?

When the Respondent’s brief gets to pointing out supposed flaws in the actual written questions, the first and primary example given – I kid you not, and you’d think Respondent’s counsel would be giving the Supreme Court of the United States their best shot – is of a question that refers to “uptown” and “downtown,” when apparently there is no such in New Haven. I can almost hear Justice Scalia guffaw. I hate to hear Scalia guffaw.

Given Roberts’s known propensities and the current makeup of the court, there seems a fair chance that the firefighters who lost their promotions even before they had them will at last prevail. Certainly all those defending the actions of the City of New Haven cannot believe this the best case on which to defend their turf. But they chose to pursue this course in neglect of simple fairness. Parties with grand social visions often forget about the value of individuals as they pursue their ends. There is a long history of it in the twentieth century. You could look it up.

The fire department tried to develop a fair test. Now some are arguing otherwise, but lawyers can argue anything, and no one is claiming that any alleged flaws were culturally or racially determinative. If it can be done better, do it better next time. If a price needs to be paid for past inequities, let the city as a whole pay it. Why not, for instance, offer a retirement incentive to open up a few more of those command positions currently held by whites to speed up the next promotion opportunity and see if that hypothetically “better” test can achieve the desired result?

Affirmative action, a necessary and well-intentioned social policy, should not be an excuse for ignoring simple decency and common fairness. Employers and governments should keep their promises. Any kid knows that changing the results of a game that was played according to reasonable and agreed upon rules is a skuzzy deal. On the street, it’s a scam. In the first case, you don’t play with those people again. In the second – well, who knows? In a civil society, you sue ’em.

Oh, that’s what they did.


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