What do you care about: getting the best firefighters, or making sure you don’t upset minorities and women? The City of Stamford, Connecticut has made its choice. As a result, some of the best firefighters may have to find some other line of work.
STAMFORD, Conn. — The city has to throw out its firefighter exam after an expert said it discriminated against women and minorities.
Officials announced Thursday they intended to send the matter to the Board of Finance in order to fund a $150,000 replacement exam.
Meanwhile, the city has already written to the 753 men and women who took the test, informing them that they could take the replacement, which will likely happen in early May. They will not have to pay the $35 examination fee again.
. . . .
As it turned out, the test was also highly slanted in favor of white men.
“In reviewing the exam results, the city discovered that the test had an adverse impact on minorities, in particular, on black, Hispanic and female candidates,” Mayor David Martin wrote to the Board of Finance on Thursday. “The results showed that 3.8 percent of black candidates, 20.8 percent of Hispanic candidates and 6.2 percent of female candidates passed the exam, a statistically significant difference from the 36.4 percent rate for Caucasian candidates.”
“Adverse impact” means these groups didn’t do as well on the test — presumably because it was filled with questions only white guys would answer correctly, like the correct number of sea salt shakers to keep in your pantry, or the best places to buy Ray-Bans.
In many of his books, Thomas Sowell makes the point that different groups have different scores on many different types of tests. There are many reasons for such disparities, which have nothing to do with discrimination or genetics, but instead include factors such as cultural priorities and habits, and other significant circumstances.
A test is not “slanted in favor of” one group because that group does better on the test. It could be that the group is better, as a whole, at answering the questions on the test. The real question is whether success on the test is an accurate predictor of success on the job. If it is, then the citizens of Stamford should not care whether certain groups do better or worse — except to the extent that they should want to draw their firefighters from the group that does better.
Why are we in this predicament? Kevin Gutzman, who gets the hat tip for bringing this article to my attention, explains that there are two squishy old white men who can take a lot of credit: George H.W. Bush and Anthony Kennedy.
For his part, Bush decided to sign 1991 revisions of the 1964 Civil Rights Act that had language making it easier to claim “disparate impact.” Discussing the 2009 Supreme Court case of Ricci v. DeStefano, Gutzman says:
New Haven had administered the test to 118 firefighters, 25 of whom were black. None of the blacks qualified for promotion to the 15 available positions, while all 20 of the white (including Hispanic) plaintiffs did. Black firefighters who had failed the examination threatened to sue New Haven if it considered the test in making promotion decisions. Their suit would be based on the statute’s disparate impact provision.
It was the disparate impact provision that Pat Buchanan and others had in mind when they accused President George H. W. Bush of having signed a quota bill when he agreed to revisions of the ’64 Civil Rights Act in 1991. The elder Bush’s critics said that if employers knew they could be successfully sued for using any measure that disproportionately excluded black applicants, they would seek measures that included proportionate shares of black applicants. That is, they would tacitly follow a quota system.
The facts of Ricci v. DeStefano vindicate Bush’s critics.
Ricci v. DeStefano was a case brought by white firefighters in Connecticut (sound familiar?) who sued after their fire department threw out the results of a promotional exam. According to the exam’s results, 20 white and Hispanic (grouped together for this example, natch) firefighters qualified for promotions, and no black firefighters did. So: the black firefighters threatened to sue, and officials relented and threw out the results. They obviously didn’t care that their actions were hurting a racial group as long as that group was white (and Hispanic) — until the lawyers got involved.
This is where squishy old white guy #2 comes in: Anthony Kennedy. The white firefighters won because the Court found that the officials who threw out the test couldn’t meet Kennedy’s squishy legal standard, designed to ensure full employment for lawyers for years to come. Writing in 2009, shortly after the Ricci decision was announced, Gutzman said:
Kennedy said in Ricci that before a government institution could throw out a promotion criterion with a disparate impact, it must have a “strong basis in evidence” that a disparate-impact lawsuit was likely. In other words, it must have good reason to think that if it came to that, Anthony Kennedy would favor the government’s action. Consider yourself a judge on an inferior federal court. Would you find that guidance useful?
Likely not. That is why the head of the New Haven black firefighters’ organization said in the New Haven newspaper on Tuesday that he was considering bringing suit against New Haven if it made promotion decisions on the basis of the examination and promoted an all-white group of firefighters to captain and lieutenant. New Haven taxpayers should at some point send Justice Kennedy a token of their thankfulness to him for the burden of ongoing litigation of the matter that they seem certain to have to bear.
So effective was Kennedy’s slapdown that the people who lost acted as if they had won. And now, six years later, the same situation is arising in the same state, and officials are doing the same thing that got them in trouble in Ricci. In other words, Kennedy’s “slapdown” was no slapdown at all, and it’s business as usual in the Connecticut firefighting biz, with quotas ruling the day. Same as it ever was.
No word on whether the folks who did well on the exam in Stamford have talked to any lawyers. In just six short years (the time between the promotional test in Ricci and the Supreme Court’s decision) they might get them some justice! or not!
Hooray for the U.S. Hooray for the rule of law. Hooray for treating the races equally. And hooray for Anthony Kennedy.