Patterico's Pontifications

3/14/2011

Holder’s DOJ Ignores DeStephano v. Ricci

Filed under: General — Aaron Worthing @ 1:15 pm



[Guest post by Aaron Worthing; if you have tips, please send them here.]

It is breathtaking at times to see how little regard this administration seems to have with the law, but this one is more stunning than most.  First, you might remember Ricci v. DeStephano.  If you don’t, here are the facts, as laid out by Justice Kennedy in his opinion:

In the fire department of New Haven, Connecticut—as in emergency-service agencies throughout the Nation—firefighters prize their promotion to and within the officer ranks. An agency’s officers command respect within the department and in the whole community; and, of course, added responsibilities command increased salary and benefits. Aware of the intense competition for promotions, New Haven, like many cities, relies on objective examinations to identify the best qualified candidates.

In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the stakes were high. The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost.

When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.

Ricci was a white firefighter with dyslexia who spent a good amount of money in order to prepare for this exam and apparently scored well enough that he was likely to receive a promotion.  He and other firefighters sued alleging racial discrimination.  The District Court decision was indefensible—pretending this was not race-based action at all.  And at the Second Circuit—including then Circuit Judge Sonia Sotomayor—affirmed that decision.  And finally the Supreme Court ruled in favor of Ricci and the other plaintiffs, finding that New Haven unlawfully discriminated against them.

So what exactly is the difference between that case and this one?

The Dayton Police Department is lowering its testing standards for recruits.

It’s a move required by the U.S. Department of Justice after it says not enough African-Americans passed the exam.

Dayton is in desperate need of officers to replace dozens of retirees.  The hiring process was postponed for months because the D.O.J. rejected the original scores provided by the Dayton Civil Service Board, which administers the test.

Under the previous requirements, candidates had to get a 66% on part one of the exam and a 72% on part two.

The D.O.J. approved new scoring policy only requires potential police officers to get a 58% and a 63%.  That’s the equivalent of an ‘F’ and a ‘D’.

How indefensible is this decision?  This indefensible:

“The NAACP does not support individuals failing a test and then having the opportunity to be gainfully employed,” agreed Dayton NAACP President Derrick Foward.

Here’s a hint, folks.  When the NAACP says that affirmative action has gone too far, that’s a wake up call.  But anything for Holder’s people, right?

Now one of the ways I am center-right, instead of being right wing down the line is that I support, in a limited sense, affirmative action.  I think that a little affirmative action in providing opportunities is just fine.  The problem I have is when it is applied to outcomes.  So if a law school wants to use affirmative action to provide a person an opportunity they otherwise wouldn’t have had, I am fine with that (within reason).  But on the other hand, when its time to choose who is going to be given a gun and the right to shoot people, I am not such a fan of affirmative action.

And in the end a great disservice is being done to the people promoted by this approach.  Consider what I wrote about the Ricci case (language warning at the link):

There are actually four possibilities to explain [the disparity in scoring] that I think are more likely [than unfair questions]. The first is that this is just a statistical burp. I believe the average white person is just as suited as the average black person to be a firefighter, but that doesn’t mean that there are never any statistical deviations from that in particular places. In one community, I would assume that more black people than whites would make great firefighters; and in another, more white people than black people would be.

The second is that something in New Haven society keeps the best potential black firefighters from becoming firefighters in the first place, that doesn’t restrain white persons.

The third is that maybe the African American firefighters could have done better but effects of discrimination over their life have held them back. So for instance, maybe their minds simply haven’t been nurtured over their lifetimes as much as the white firefighters.

And the fourth is that maybe in the past New Haven has practiced discrimination against African Americans, so that in the past firefighters were more likely to be white. So then those white firefighters very often raised their children to follow in their footsteps and therefore have given their children a lot more training in the area of firefighting. So maybe Ricci is a great firefighter in part because his daddy, and his granddaddy, and his great-granddaddy were all firefighters, and he benefits from all of that familial knowledge. (Speaking hypothetically; I don’t know nearly that much about Ricci.)

I have a feeling that the last one is the most likely possibility.

Now, in all of those possibilities it is still the case that as of this day, the best scorers on the test are likely the best firefighters, and if there is any discrimination to blame, it is not the test itself, but forces outside of the test itself. And however much we might lament those outside forces (and I do) and the wasted potential, the fact is if your house is burning down, do you want the guy who would have been a great firefighter but for discrimination that keeps him from acquiring the knowledge to be a great firefighter, or the guy who is right now a great firefighter?

The question answers itself.

It also suggests that rather than taking the easy way out by quotas and the like that New Haven can and probably should engage in an aggressive program of developing African American firefighters to their fullest potential. So the affirmative action should be there, in the form of affirmatively finding black potential and developing it. Rather than ignoring what are more likely than not real differences in knowledge and ability, New Haven should instead work to erase those actual differences.

Which is indeed what is so pernicious about the de facto quota they tried to establish here—it would have allowed New Haven to ignore the underlying reasons for the disparity, rather than address and correct them. It doesn’t do the people of New Haven or the black firefighters themselves any favors if they are promoted when they don’t deserve it.

The ruling in Ricci was a positive step in the right direction.  It is now on the authorities in New Haven to work to actually erase the racial differences that exist there, rather than just covering them up.

And honestly I feel no different in this case, either.  But more importantly, this behavior is in direct contravention of a specific precedent set by the Supreme Court on this very subject.

And consider also the hapless situation of the city of Dayton.  They are literally in a sued-if-you-do,-sued-if-you-don’t situation.  If they follow the DOJ’s orders, they will be sued by white applicants.  If they refuse, they will be sued by the DOJ and/or black applicants.  I believe there is literally no chance they won’t be sued.  This is a great boon to the legal profession, but I don’t think the ordinary citizens of Dayton will be pleased.

Hat tip: Legal Insurrection.

[Posted and authored by Aaron Worthing.]

65 Responses to “Holder’s DOJ Ignores DeStephano v. Ricci”

  1. btw:

    1) i am verious curious about what jack thinks about all this.

    2) i wrote about something other than japan! yay!

    Aaron Worthing (e7d72e)

  2. Intimidation by the federal government in a local matter?

    Say it ain’t so, Mr. Eric Beholden-To-No-One!

    Icy Texan (8e21a5)

  3. Eric Holder is a thug.

    DohBiden (984d23)

  4. It’s sorta ironic that our First Occupant appointed a Holder-back-of-Justice rather than the customary Up-Holder-of-Justice …

    Or perhaps he is a Holder-up-of-Justice, in the “stand and deliver” hold-up way !

    Alasdair (e7cb73)

  5. Why didn’t the City stick to its guns in light of the Ricci decision? (Although I otherwise agree with you, Patrick: It’s ALSO incumbent upon the DOJ to take Ricci into account, in good faith, in seeking settlements.)

    Mitch (890cbf)

  6. they should just hire people who fit in the uniforms they already have

    happyfeet (a55ba0)

  7. Hah! You made me laugh, Alasdair.

    >Felipe (02954a)

  8. who’s jack nobody tells me anything

    happyfeet (a55ba0)

  9. mitch

    1) i’m not patrick… but that is a common mistake.

    2) could be two explanations why they caved: a) they figured it was better to take their chances with white police officers than the absolute certainty of a DOJ suit, or b) local racial politics says they would rather screw white people. the latter was almost certainly part of the thinking in new haven.

    Aaron Worthing (73a7ea)

  10. oh Mr. Dunphy you mean?

    happyfeet (a55ba0)

  11. Every once in a while I troll here to remind you ‘colorblind’ conservatives that there ain’t no such thing as ‘colorblind’ or ‘religionblind’ or ‘ethnicityblind’ in politics. Every ‘diverse’ polity has one group above, one group below. Now that immigration is making whites a minority, we (whites, especially gentiles) will definitely play the ‘below’ role, unless we start asserting our ethnic/racial interests just like La Raza and the NAACP and the ADL do.

    Consider Holder’s action yet another datapoint in my favor. (And please, no ‘but Alan West’, he probably got about the same percentage of the actual black vote thatMcCain got.)

    stari_momak (d5f987)

  12. Stari

    > Every once in a while I troll here

    Well, at least you are honest about it.

    > that there ain’t no such thing as ‘colorblind’

    Speak for yourself.

    Aaron Worthing (73a7ea)

  13. stari

    i mean, in case you missed it, the NAACP spoke out against it, too.

    Aaron Worthing (73a7ea)

  14. To me what’s even worse than the Holder/DOJ blatant race-hustling is that the Dayton PD is apparently following the lead of the education bureaucracy: If the test is too hard to pass, lower the grade needed to pass. Most agencies in this situation would very quietly dumb-down their tests so that it would be a whole lot easier to pass. Dayton is apparently too lazy to rewrite the exam, and at the same time comfortable enough just to adopt a lower standard of success on the existing one.

    JVW (1a2602)

  15. the test is already probably so easy that dumbing it further down isn’t feasible

    happyfeet (a55ba0)

  16. Scary Moleman needs to go back to knitting Swastika flags in his reich mommy’s basement.

    Icy Texan (8e21a5)

  17. So ‘center-right’ thinks it is okay to discriminate and grant preferential treatment on the basis of race… but just not too much?

    The (fine) line you are trying to walk is fundamentally flawed. You might think it is less wrong to grant one group ‘opportunities’ than it would be to grant them ‘outcomes’ but it is still discrimination on the basis of race, you’re giving one racial group something not available to other groups… and intentionally so. Paraphrasing Churchill, we’ve established bigotry, we’re just negotiating the degree of such. And once you’ve taken the position that it is okay to discriminate on that basis, you’ve lost the ground to oppose discrimination that goes further than just granting one group additional opportunities.

    To this armchair psychologist, such attitudes are indicative of discomfort with those who viewed as ‘right wing’… there’s something not quite right about them, it would be uncomfortable to be thought of as one of them, so you carve out some distance in order to assure yourself and others (perhaps a potential mate of the liberal persuasion?) that you are not (as) flawed like those evil right wingers.

    steve (254463)

  18. “little affirmative action in providing opportunities is just fine”

    Actually, no, its not. EVERY hire or promotion based on race is a case of racial discrimination. Why? Because the person who did NOT get the job or the promotion was turned down because of their skin color, and nothing else.

    If you want an end to racial descrimination, stop descriminating by race.

    Callawyn (bab74a)

  19. Callawyn #17 – therein lieth the problem …

    To end racial discrimination, it is not sufficient to simply stop discriminating by race … where there is a need to choose, there needs to be a method to use to choose, some specific method of discrimination which can be shown to be more effective, more fair, more just, more whatever …

    Personally, I favour discrimination by merit/ability … with applicants for ajob given the opportunity to show that they have existing skills and knowledge to perform the job well …

    Affirmative action can still have a valid place – as long as it is something positive, like tutoring/experiential opportunities for those willing to make the effort – and, more importantly, as long as it is not quota-based …

    Alasdair (e7cb73)

  20. I wonder but that Mr. Foward won’t be sent for re-education?

    happyfeet (a55ba0)

  21. You had four reasons why black
    firefighters might have failed.
    But honestly, I think you missed
    some…
    It might be that rather than spend
    40 hours studying for the test, as the
    average white person did,
    the black applicants studied an
    average of 10 hours.

    Jack (f9fe53)

  22. there aren’t any study materials is what the website says Mr. Jack

    happyfeet (ab5779)

  23. Most Civil Service examinations are taken on a computer. Additional components to an examination may include physical agility testing and/or structured interviews.

    All Civil Service examinations are “job-related” and based on the job duties and experience qualifications of the job you have applied for. Although there are no specific study materials, you may obtain a detailed job description for the position you have applied for at the Civil Service Board office. In addition, depending on the examination, you should “brush up” on your basic skills – arithmetic, grammar and typing (if required). Hand-held calculators are provided by Civil Service for all examinations. If you are taking an examination which requires typing skills, you will be tested on a computer keyboard.

    that’s from here from under the question What type of examination can I expect to take?

    maybe it’s different for police?

    happyfeet (ab5779)

  24. “jack” is kind of a d*ck.

    JD (ba531c)

  25. A number of years back (possibly as much as twenty–I’m hazy on the dates) the City of Miami Police Department made similar efforts to hire extra black cops. Many, although not all, of these recruits were of inferior quality compared to the cohorts hired in the years before and after this special effort.

    Over the next several years the City of Miami suffered from an above average amount of police corruption, abusive behavior, and other stuff associated with sub par police performance, all traceable to the decision to accept inferior quality recruits.

    Eventually, the Miami PD found enough high quality black recruits to bring things back to normal. But it took quite a while for all the effects to get worked out (and may still be in the process of being worked out, since those recruits, if still with the Miami PD, would have a number of years to go before retirement).

    kishnevi (1b86f1)

  26. This is interesting when looked at in light of public school education and the hot button topic that districts are now focused on: closing the achievement gap between African-American and white students. There are any number of proposed remedies from parent workshops to expenditure of dollars for tutors to specifically work with minority students in the areas of Math and Language Arts in an attempt to bolster test scores and have an outcome with far less disparity.

    With so much funding riding on state test scores in public ed coupled with the disparity, how long will it be before there is a discrimination suit filed against states for racially biased student testing? And the proof of this will be the consistent lack of achievement made by said minority group.

    Dana (9f3823)

  27. He’s just practicing. If the Supremes smack down Obamacare, he wants to have his “John Roberts has issued his opinion–now let him enforce it” riff down pat.

    M. Scott Eiland (27aed4)

  28. It is incredible how myopic the DoJ is.
    15 – 20 years ago, this exact scenario played out in Washington DC:
    Recruitment standards were drastically lowered to encourage more “minorities” to apply, and be accepted into the DC police.
    The standards got so low, and the quality of the recruits so abysmal, that the crooks had full run of the District, both on the streets, and within the Precinct Houses – it seems that some of those new recruits with prior drug-use maintained their relationships with their suppliers and associates after becoming officers.
    Also, closer to home (SoCal) we have seen standards to joint the LAPD relaxed due to the Consent Decree (and other meddling by the DoJ), and have seen less than stellar results from same.

    AD-RtR/OS! (0bc8d7)

  29. The article doesn’t tell us: what authority does the DOJ even have with respect to a city’s hiring standards???

    Alex (2291ee)

  30. The article doesn’t tell us: what authority does the DOJ even have with respect to a city’s hiring standards???

    Indeed.

    There are Tenth Amendment issues.

    Michael Ejercito (64388b)

  31. I haven’t done a case study on this particular situation, but I would say there is probably a qualitative difference between a promotional exam which had been vetted as not having any kind of racially discriminatory content, as was the New Haven firefighters exam, and a hiring exam such as the one used here.

    It might be that simply expanding the hiring pool — as opposed to expanding the promotion pool — ultimately works no reverse discrimination to non-minority applicants, but merely produces a broader pool for hiring.

    We also know nothing about the Dayton exam — maybe it was determined to be suspect in its content, which was explicitly not the case in New Haven, and which was a huge factor in the outcome of that case.

    So, until you know more its hard to say the two situations are on all fours with each other.

    shipwreckedcrew (436eab)

  32. Another difference is the fact that in the New Haven case the firefighters were actually told they were being promoted before their promotions were rescinded and the exam nullified. As public employes there was a solid argument that they had a vested property right to the benefits that went along with the promotion, and those could not be summarily taken away by invalidating the exam.

    An applicant for new employment doesn’t have the same protection.

    shipwreckedcrew (436eab)

  33. michael

    i think if there was genuine discrimination in hiring, there wouldn’t be a 10th amendment issue.

    Remember, the 14th Amendment came after the 10th.

    Aaron Worthing (73a7ea)

  34. It has been a while since I read the facts on this, but perhaps someone else has this: I reall that this test was developed after paying tens of thousands to consultants to erradicate any racial biases in the test. Part of the defense, I think, was that the city had exercised much diligence in preventing racial biases in their examinations.
    Anyone have more on this?

    raugaj (bda54f)

  35. ship

    of course it is racial discrimination. they changed their behavior according to the race of who did well. but that doesn’t end the inquiry–some discrimination is legal under current law.

    Aaron Worthing (73a7ea)

  36. raugaj – Actually it can be argued that the New Haven test was racially biased in favor of minorities. The city, assuming that minority firefighters would do worse on the written portion of the test, decreased the relative wieght of that portion of the exam. And although the vast majority of the personnel taking the test were white they required that two-thirds of the board performing oral qualifications be minorities.

    Have Blue (854a6e)

  37. Hey who wants to know what Sonia the wise latina thinks?

    BTW she isn’t racist but if she were a white conservative male she would be deemed racist by the media.

    DohBiden (984d23)

  38. Time for DohBiden
    to really quit tryin’; his
    shtick is not flyin’

    Haiku Critic (2f015c)

  39. How about a 5th possibility: white people are smarter than black people. I’m not saying this is true, but it’s the 800 pound gorilla in the room and no one wants to acknowledge it’s presence.

    East Coast Chris (c31a9b)

  40. Holder wanted to be sure that when the Dayton Police Dept. conducted their undercover operations, their new recruits would fit right in…

    jcloh (27638e)

  41. East Coast Chris,

    Of course, that is the obvious implication of a lot of data points regarding tests.

    But that’s not to say that any individual we see will correlate to a ‘whites are smarter blacks are less smart’ summary. That’s because racial analysis is a terrible way to categorize people. Skin color has very little to do with intelligence, but when we are forced, over and over and over, to separate into race categories, white people or black people may start identifying with their group’s overall performance instead of ignoring their race group’s performance.

    I know for sure that smart, informed fireman applicants will test better than other candidates, and these DOJ driven efforts to even consider what their races are just divides us for political benefit.

    As to Aaron’s trademark frankness about his acceptance of affirmative action, I think a better way to accept affirmative action is to allow decision makers to take into account someone’s life story. If I grew up in a broken home in the ghetto, my test performance is probably inferior to my innate capabilities. Some will want to cultivate that potential, and we should call that affirmative action.

    How many use AA as a shakedown or racial identity coveting is simply unhealthy.

    Dustin (c16eca)

  42. If you want an end to racial descrimination, stop descriminating by race.

    Comment by Callawyn — 3/14/2011 @ 3:24 pm

    Amen! Affirmative action is racial discrimination by another name.

    Gadhaffi Duck (882387)

  43. OOPS! Stupid sock. Begone!

    RickZ (882387)

  44. Dustin

    Well I will say with my “trademark frankness” (I didn’t know I had a trademark!) that my approach is shaped by experience. Its an uncomfortable thing to ta[l]k about, because its hard to talk about those things without assessing myself, and as you will see in a moment, I have complicated feelings about assessing myself.

    As you probably have picked up by now, I have learning disabilities. When I was in high school I made the mistake of revealing that I had learning disabilities to the administration and asking for mild accommodations. Mind you, this was before the ADA. Not only did they refuse, but they began to actively discriminate against me until eventually things got so bad that I dropped out. I just looked ahead and thought “this was only going to get worse as I go to college, etc.” and gave up. And I stayed away from school for several years. Then I had a close relative (name and relation withheld), who was also diagnosed with similar disabilities (they do tend to run in the family) and to my shock they treated him reasonably. The fact this came after the ADA was passed is likely to be relevant, there.

    So I gave it another try. Despite not having attended even my senior year, I was able to pass the GED on the first try. Because I was a high school drop out, I wasn’t going to get into a higher tier university, so I went to a “second level” state school. And when I was there, I tried taking the LSAT (Law School Admission Test—sort of like the SAT of law schools) and to my shock my scores were literally higher than the median at every law school in America. And with a perfect GPA, I had a very good chance at getting into any law school. To a guy whose self esteem was battered by living all my life with those disabilities, that fairly freaked me out.

    But of course there was one problem. My undergraduate school lacked prestige. I’m not going to name it because it doesn’t deserve to be put down this way, but I knew that probably in the minds of any admission committee docked me a whole point on my GPA just for being there.

    So when it came time to apply to, one question was, “do I reveal my disabilities exist?” But the question was answered for me. one of the accommodations I got on the exam was being allowed to use a computer to type it (I have a very hard time, physically, writing by hand). And then about five minutes after the fact, I realized it was a dead giveaway that I had received some kind of accommodation.

    So I made the case in my application that this was how well I did, with all that discrimination arrayed against me, and the fact I had a perfect GPA meant they had no idea what I could do if I had had the opportunities denied to others.

    Did they accept me at Yale Law School because of some kind of affirmative action? Maybe, I honestly don’t know. But at the very serious risk of bragging, nobody felt I didn’t belong. In fact early on I was so good in class I dialed it back a notch because I think I was freaking them out. I won’t say I was the greatest Yalie in history, but I was above average, for that school, which is pretty dang good.

    So I have seen first-hand that in education a person can make up for a lot of lost time. Take my writing disability, for example. As I said above, it literally only affects my ability to write by hand. When I try to write by hand, I write four times slower than a normal person when I write in print, and twelve times slower when I write in cursive. It prevented me from making the jump fully to cursive, so to this day the only cursive I write is my signature. And of course I achieve those “blazingly fast” (heh) speeds only by writing in a very messy way. But the problem completely goes away when I write on any kind of keyboard.

    Still, at the age of 15, my ability to write was so stunted—both in terms of the physical task and the compositional element—was was frozen at the 2nd grade level. But about then I got my first access to computers and especially later in college I started taking a laptop with me to classes. Within about 10 years I went from being a horrible writer to being an award-winning writer. My point isn’t to brag (though I probably have crossed the line into bragging territory) but to say that a person’s mind can be badly neglected for many years, but then when given the chance can make up for lost time very quickly.

    So that to me is where I think Affirmative Action is justified, either to correct a past injustice that prevents a person’s actual performance from being accurately reflective of actual (relevant) ability and knowledge, or to make up for lost time like that. But again, I want that affirmative action to go into training, opportunity, and not outcomes. And of course I equally think it shouldn’t be limited to race, and certainly not just black and white.

    Now you could say, “a ha! You are biased by your life experiences.” Could be, but what I believe instead is that I have been educated by those life experiences in a way no textbook could teach you.

    And of course what happened in New Haven was just gross and not at all the way affirmative action should be. It was very clear this was racial politics at its ugliest.

    [fixed after the fact]

    Aaron Worthing (e7d72e)

  45. ‘firmative action
    “should be” a distant mem’ry;
    does no good, you see

    Cold Hard Haiku (2f015c)

  46. AW: If your acceptance was based (even in part) on your having overcome your disability, then how is your having received the ‘opportunity’ to go to law school not also an ‘outcome’ that you profess to dislike? ANY favorable treatment results in an outcome. Giving someone training is an outcome, and since resources are limited, an outcome that is denied to someone else.

    steve (369bc6)

  47. Your story is great, Aaron. But you are biased by life experiences. Just kidding.

    I can’t imagine the shock of realizing your LSAT was so high your prior academic record, especially high school, was completely irrelevant. I guess that’s karma.

    Does YLS do interviews? At the very least, you have a chance to appeal to someone’s sense of discretion about what you’re capable of. And I think plenty of white kids have a similar disadvantage as a stereotype Hollywood presented disadvantage black (and I also strongly suspect blacks in Ivy league professional programs have almost nothing in common with those kids). As you know, race is a ridiculous proxy for ‘needs a little extra consideration’.

    Dustin (c16eca)

  48. But of course there was one problem. My undergraduate school lacked prestige. I’m not going to name it because it doesn’t deserve to be put down this way, but I knew that probably in the minds of any admission committee docked me a whole point on my GPA just for being there.

    There’s some irony there in that YLS has its own built-in system of bias in regard to other schools that don’t quite make the grade. (We all understand tier systems and that Ivies are simply not like everyone else but still, considering the subject is a look at forms of discrimination, it’s ironic.)

    Great story, Aaron.

    Dana (9f3823)

  49. Dustin

    No, they don’t do interviews, but they give you something like 3 pages to sum up your life story. which is alot harder than it sounds.

    Aaron Worthing (e7d72e)

  50. Aaron — “So if a law school wants to use affirmative action to provide a person an opportunity they otherwise wouldn’t have had, I am fine with that (within reason).”

    Notwithstanding your own personal history, I have to disagree; here’s why I’m am not center-right, but full fledged right… Law school admissions are zero sum. By “provid[ing]…an opportunity” to one person based on affirmative action (e.g. solely on the basis of membership in a protected class) EVEN IF another candidate, who was not a member, had higher qualifications…the policy denies an opportunity to a qualified individual.

    Now, in your case, your LSATs and GPA was such that you were not unqualified. But AA deliberately lowers the standards to promote otherwise unqualified candidates at the expense of qualified ones — think of the Michigan case (Gratz v. Bollinger?) where being minority was a +20, while earning a perfect SAT was only +12. Or Grutter v. Bollinger, where equivalently qualified candidates had different outcomes based solely on race: black candidates at the 86% percentile of qualifications were admitted to law school at 100%, while white candidates at the 86% percentile were admitted to the same law school, in the same year, at 8.6%.

    Some parts of anti-discrimination laws like the ADA are non zero-sum: other than the opportunity cost related to the use of (public or private) funds, putting in a wheelchair ramp or widening a door helps disabled, without penalizing the non-disabled.

    AA deliberately penalizes the innocent, in order to promote those who may — or may not! — have been directly harmed by some other third or fourth party.

    That is unjust.

    BobInFL (bae5a3)

  51. Wait until Eric discovers that the vast majority of technical workers at nuclear plants are white or Asian in ancestry.

    Alan from Chgo (8fa053)

  52. Let me make a prediction–Derrick Foward will be gone from his post at NAACP Dayton. And from what I can see, this wasn’t about affirmative discrimination for area blacks, it was about being too blatant about the method — making blacks look ‘dumb’. The usual way of arranging these things is more subtle — dumbing down tests until almost everyone passes, and then putting heavy weight on interviews is a favorite.

    Meanwhile, the ‘Justice’ department will continue, manned (‘personned’) as it is by ethnoracial activists.

    Justice Department spokeswoman Xochitl (!) Hinojosa said in an e-mail Friday the goal of the lawsuits is to uphold the Civil Rights Act by removing “unnecessary barriers” in hiring practices. She added the Justice Department does not file lawsuits “based solely on the (diversity) numbers.”

    I doubt very much our Founding Fathers had in mind white men being screwed by descendants of Aztecs. Matter of fact, as I’ve read Federalist 2, I am sure of it.

    stari_momak (d5f987)

  53. Elections have consequences, but too bad the Bush Administration did nothing about the New Haven case either, so perhaps elections don’t have consequences. But genetics do have consequences. The real reason that blacks scored badly is the same reason they score badly on the LSAT. It is also the same reason that blacks dominate the NBA and NFL. They are more genetically suited to one profession than the other two.

    Federale (ae10d6)

  54. stari

    the founders knew there were such things as black people, and *facepalm* even descendants of aztecs. and yet amazingly they never put an ethnic qualification for office-holders in the constitution. don’t you think that if they wanted to make our government lilly white they might have mentioned it?

    And why do i smell moby in all of this?

    Aaron Worthing (e7d72e)

  55. “They are more genetically suited to one profession than the other two.”

    Federale – Help me out here, do you think it’s because of those extra bones or something? I could never figure that stuff out.

    daleyrocks (ae76ce)

  56. lunch has consequences

    happyfeet (a55ba0)

  57. Daley

    lord i hope there isn’t a lawyer gene. someone might get it in their head to wipe us out!

    Aaron Worthing (e7d72e)

  58. A.W. – Isn’t the lawyer gene next to the azzhole gene?

    daleyrocks (ae76ce)

  59. What if there was an lawyer gene?

    DohBiden (984d23)

  60. Great story, Aaron. It’s quite close to what happened to someone else I know, whose ‘disability’ was extreme poverty and sad circumstances that forced him to leave school in 10th grade. He still wound up being accepted to Yale Law School.

    lasue (ed9852)

  61. Lowering the entry test scores to accomodate minority applicants will only have unintended consequences, setting them up for failure. Testing is one thing; making it through the academy is another, and most instructors at fire academies are fire fighters themselves and they are not about to cut anyone slack because of the color of the skin poking out of the shirt collar. Then, when those minorities do fail to make it though to become a rookie, they will discourage others who might make it through.

    Lowering test scores, IMHO, is just as biggoted as not hiring due to skin color. It assumes that minorities are not intelligent enough to pass the exams as their white counterparts. Saying “You’re not as smart as the whites, and we know that the public schools have failed you so we are going to pander to you” simply is a continuation of the victim mentality. People reach their highest potential when it is expected of them, not when tests are lowered so Eric Holder can make a splash.

    retire05 (63d9af)

  62. Daley

    hey now, you are talking on a blog run by a lawyer, to a guest blogger who is a lawyer!

    i resemble resent those remarks!

    lasue

    good for him. seriously.

    Aaron Worthing (e7d72e)

  63. Aaron,

    Actually, Indians were treated as foreign–frequently hostile — nations. You know ‘the merciless Indian savages’ (Thom. Jefferson, not me). They didn’t universally become citizens until 1922, I believe. Blacks were of course not eligible to vote in the South, I’m not sure of the political rights of freemen in the north. But if you look at early legislation, the ‘white’ thing is there, over and over. Naturalization was limited to ‘free whites’, the Militia Act of 1791 required service from ‘free white males’ etc. So, yes, I think they’d be very surprised and not in a good way to see the current situation — whites dwindling to a minority (and then a small minority), a half-African president, and so on.

    stari_momak (d5f987)

  64. And what’s this about ‘moby’ — is this a commentator here, or are you referring to the techno musician, or maybe the Great White Whale itself!

    stari_momak (d5f987)

  65. Go return to AmCon, or Eunomia, or even Mondo Weiss, they crave your brand of crazy

    narciso (a3a9aa)


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