This US Supreme Court Decision sounds the death knell for institutionalized racism in this country.

Actually, I think it re-opens the debate. Some would like to point to Barack Obama as evidence that we no longer have racism in this country. However, with the Baby Boomers entering retirement and Gen X-ers making their way up the professional ladder, why is there an overwhelmingly disproportionate percentage of white males in senior positions in government and business? You would think by now we would have a more representational sample of FORTUNE 500 CEOs who are female, black, hispanic, Asian....but we don't. Same goes for the Senate and House.

I'm not saying that New Haven's approach was the correct one. But to act like racism is dead in this country is to live in denial.

The Supreme Court ruled that discrimination on the basis of race is not to be tolerated in this country. Not nobody not nohow.

I was a college athlete back in 1974 when Title IX was institutionalized. My teammates and I benefitted from that legislation, but none of us wanted to do so at the expense of our male counterparts. What good does it do to replace one flavor of descrimination with another? It is time for all forms of institutionalized racism and gender bias to go away. The court did a good thing.

From what I read, the fireman test was extremely biased against blacks. They asked questions that ONLY Whites and Hispanics could possibly know.

Here's a section from the test:
1. What SPF sunblock would be appropriate for a day of swimming at the beach?
2. You're walking through an abandoned house and hear a noise, how long do you wait to investigate?
3. What's your credit score?

Since no one was promoted, there was no discrimination; the SCOTUS missed that point.

FUNdamental Wrote:
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> Since no one was promoted, there was no
> discrimination; the SCOTUS missed that point.

you are seriously not that stupid are you? You must be a public school drop out.

FUNdamental Wrote:
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> Since no one was promoted, there was no
> discrimination; the SCOTUS missed that point.


Thats great logic. We'll just retest until we get the results we like. How'd you like to be one of the firefighters?

Law Dog Wrote:
-------------------------------------------------------
> FUNdamental Wrote:
> --------------------------------------------------
> -----
> > Since no one was promoted, there was no
> > discrimination; the SCOTUS missed that point.
>
> you are seriously not that stupid are you? You
> must be a public school drop out.


The issue is that there were no damages, so how can you sue?

They didn't get promoted. Lost wages and lost benefits. Thats one.

Two is the lost time in having to prepare to retake the exam several additional times when the first time would have sufficed.

Three is the emotional damage and reputational loss that could have occurred through coworkers inferences that you took the test and you weren't promoted?

How about reversing this and thinking about it. They give the exam: 20 take it. 12 blacks pass. One Hispanic passes. No whites pass. The powers that be trash the test because its not representative. Dont you think there would have been an outrage?

WashingTone Locian Wrote:
-------------------------------------------------------
> Law Dog Wrote:
> --------------------------------------------------
> -----
> > FUNdamental Wrote:
> >
> --------------------------------------------------
>
> > -----
> > > Since no one was promoted, there was no
> > > discrimination; the SCOTUS missed that point.
> >
> > you are seriously not that stupid are you? You
> > must be a public school drop out.
>
>
> The issue is that there were no damages, so how
> can you sue?


You must be in the same dropout class as FUNdamental. There is clearly an injury that can be redressed by the court.

An excellent piece from the Washington Monthly's website outlined the logic of the circumstances here.
From Steve benson's piece;


The plaintiffs argued that scrapping the tests was a violation of Title VII. The Court disagreed. Here again, though, they didn't pull this conclusion out of thin air. This question is governed by precedents, which the District Court discusses on pp. 31-40. I read one of them (Bushey v. New York State Civil Service Commission), and it is very much on point; I'm not a lawyer, but I think that the court would have had to overturn it in order to decide this case differently.

Their basic point, as summarized by the Second Circuit, is this:
"These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability."

Scrapping the test was race-conscious: the point was to avoid running afoul of Title VII by having a test that so few blacks and Hispanics passed. But it was facially neutral: New Haven did not require that whites pass the test but waive those requirements for blacks, or anything like that; they cancelled the whole test, for everyone. You might wonder whether this really counts as neutral, but the precedents seem pretty clear to me: in Bushey, the action the court said was OK was race-norming their exams (i.e., setting up different curves for different races, so that each race had about the same percentage of people passing.) It's hard to see how one could say that that's not discrimination, but scrapping an exam in order to come up with a new one is.

FUNdamental Wrote:
-------------------------------------------------------
> An excellent piece from the Washington Monthly's
> website outlined the logic of the circumstances
> here.
> From Steve benson's piece;
>
>
> The plaintiffs argued that scrapping the tests was
> a violation of Title VII. The Court disagreed.
> Here again, though, they didn't pull this
> conclusion out of thin air. This question is
> governed by precedents, which the District Court
> discusses on pp. 31-40. I read one of them (Bushey
> v. New York State Civil Service Commission), and
> it is very much on point; I'm not a lawyer, but I
> think that the court would have had to overturn it
> in order to decide this case differently.
>
> Their basic point, as summarized by the Second
> Circuit, is this:
> "These cases clearly establish for the circuit
> that a public employer, faced with a prima facie
> case of disparate-impact liability under Title
> VII, does not violate Title VII or the Equal
> Protection Clause by taking facially neutral,
> albeit race-conscious, actions to avoid such
> liability."
>
> Scrapping the test was race-conscious: the point
> was to avoid running afoul of Title VII by having
> a test that so few blacks and Hispanics passed.
> But it was facially neutral: New Haven did not
> require that whites pass the test but waive those
> requirements for blacks, or anything like that;
> they cancelled the whole test, for everyone. You
> might wonder whether this really counts as
> neutral, but the precedents seem pretty clear to
> me: in Bushey, the action the court said was OK
> was race-norming their exams (i.e., setting up
> different curves for different races, so that each
> race had about the same percentage of people
> passing.) It's hard to see how one could say that
> that's not discrimination, but scrapping an exam
> in order to come up with a new one is.

Nah, that piece isn't so excellent. It is actually wrong.

The concurring opinion in the Ricci v. DeStefano case (won by Ricci on a 5-4 vote) by Justice Sam Alito, with Thomas and Scalia supporting, attacks the trustworthiness of Ginsburg's retelling of the Ricci story in her dissent.

Alito first goes through some judicial throat-clearing, which, by Supreme Court standards, is pretty much the equivalent of pointing at Madame Justice Ginsburg and chanting Liar, Liar, Pants on Fire:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent were accepted, affirmance of the decision below is untenable. ...

Now, here's the fun part of Alito's concurrence that demonstrates once again how what in theory is the Sacred Cause of Diversity turns out in practice to be just
Old-School Tammany Hall Skullduggery.

As initially described by Justice Ginsberg's dissent, ... the process by which the City reached the decision not to accept the test results was open, honest, serious, and deliberative.

But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” ...

This admission finds ample support in the record.

Reverend Boise Kimber is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” ...

On one occasion, “in front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.” ...

Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade.

In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber — then the manager of a funeral home — was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. ...

“Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” ...

According to the Mayor’s former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because “[h]e’s very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots.”...

In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.”

... In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their names.’”...

After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ... but he remained on the BFC and retained “a direct line to the mayor,”...

Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’” ...

Dubois-Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. ...

As discussed in further detail below, Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor....

On January 12, 2004, Tina Burgett (the director of the City’s Department of Human Resources) sent an e-mail to Dubois-Walton to coordinate the City’s response to the test results.

Burgett wanted to clarify that the City’s executive officials would meet “sans the Chief, and that once we had a better fix on the next steps we would meet with the Mayor (possibly) and then the two Chiefs.” ...

The “two Chiefs” are Fire Chief William Grant (who is white) and Assistant Fire Chief Ronald Dumas (who is African-American).

Both chiefs believed that the test results should be certified. ...

Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chiefs” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter.” ...

The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven to meet with Dubois-Walton, Burgett, and Thomas Ude, the City’s corporate counsel. ...

“Legel outlined the merits of the examination and why city officials should be confident in the validity of the results.”...

But according to Legel, Dubois-Walton was “argumentative” and apparently had already made up her mind that the tests were “‘discriminatory.’” ...

Again according to Legel, “[a] theme” of the meeting was “the political and racial overtones of what was going on in the City.” ... “Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results.” ...

On January 22, 2004, the Civil Service Board (CSB or Board) convened its first public meeting.

Almost immediately, Rev. Kimber began to exert political pressure on the CSB.

He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold him out of order three times. ... Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private....

Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, Burgett, and Ude. ...

The message clearly indicated that the Mayor had made up his mind to oppose certification of the test results (but nevertheless wanted to conceal that fact from the public): “I wanted to make sure we are all on the same page for this meeting tomorrow.... [L]et’s remember, that these folks are not against certification yet. So we can’t go in and tell them that is our position; we have to deliberate and arrive there as the fairest and most cogent outcome.” ...

On February 5, 2004, the CSB convened its second public meeting.

Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whites and one Hispanic and no blacks.... I would hope that you would not put yourself in this type of position, a political ramification that may come back upon you as you sit on this [Board] and decide the future of a department and the future of those who are being promoted. ... “(APPLAUSE).” ...

One of the CSB members “t[ook] great offense” because he believed that Rev. Kimber “consider[ed] [him] a bigot because [his] face is white.” ... The offended CSB member eventually voted not to certify the test results. ...

One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. ... After some firefighters applauded in support of certifying the test results, “Lt. Tinney exclaimed, ‘Listen to the Klansmen behind us.’”...

Tinney also has strong ties to the Mayor’s office. ... After learning that he had not scored well enough on the captain’s exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Tinney alleged that the white firefighters had cheated on their exams — an accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into its veracity. ...

The allegation turned out to be baseless. ...

Dubois-Walton never retracted the cheating allegation, but she and other executive officials testified several times before the CSB. ...

As part of its effort to deflect attention from the specifics of the test, the City relied heavily on the testimony of Dr. Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business.

Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” ... but Hornick did review and rely upon literature sent to him by Burgett to criticize Legel’s test.

For example, Hornick “noted in the literature that [Burgett] sent that the test was not customized to the New Haven Fire Department.” ...

The Chairman of the CSB immediately corrected Hornick. ...

Although Hornick again admitted that he had no knowledge about the actual test that Legel had developed and that the City had administered ... the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt]quoting him as a person that we should rely upon more than anybody else [to conclude that there] is a better way — a better mousetrap.” ...

Dubois-Walton later admitted that the City rewarded Hornick for his testimony by hiring him to develop and administer an alternative test.

In practice, "Disparate Impact" turns out to be just a fancy name for the kind of 19th century Tammany Hall corruption that Civil Service testing was instituted to abolish in the first place.

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

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

a. 5, 4
b. 4, 4
c. 5, 5
d. 4, 5

(You don't want to overestimate because firehoses filled with water are heavy.)

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

Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings.

When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day, and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no black candidates had scored high enough to be promoted. Ricci and 19 others sued.

Empathy is a vital virtue to be exercised in private life -- through charity, respect and loving kindness -- and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.

Obama and Sotomayor draw on the "richness of her experiences" and concern for judicial results to favor one American story, one disadvantaged background, over another. The refutation lies in the very oath Sotomayor must take when she ascends to the Supreme Court: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich. ... So help me God."

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."