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calendar   Sunday - June 28, 2009

Justice or Politics?

SCOTUS To Judge Sotomayor’s Discrimination Decision on Monday




WASHINGTON - A closely watched discrimination lawsuit by white firefighters who say they have unfairly been denied promotions is one of three remaining Supreme Court cases awaiting resolution Monday.
...
Appeals court judge Sonia Sotomayor, nominated to take Souter’s place, was one of three judges who ruled that officials in New Haven, Conn., acted properly in throwing out firefighters’ promotions exams because of racially skewed results.

The city says it decided not to use the test scores to determine promotions because it might have been vulnerable to claims the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964. The white firefighters said the decision violated the same law’s prohibition on intentional discrimination.

The opinion that Sotomayor endorsed has been criticized, including by fellow judges on the 2nd U.S. Circuit Court of Appeals in New York, for taking a cursory look at a tough issue. Her defenders have said the short opinion properly applied earlier cases from that appeals court.

The outcome of the case could alter how employers in both the public and private sectors make job-related decisions.



My, that’s putting it gently, isn’t it? New Haven made up a dumbed down, PC exam specifically so that “minorities” could score better on it. And they didn’t. But some white guys, who studied really hard for the exam, did. So the city threw out the results and denied the promotions. Can’t have that you know. So the white guys sued. And lost. The case is Ricci v. DeStefano. And judge Sotomayor ruled that New Haven was correct. Um, wrong-o!


In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.
...
Ricci and 19 other firefighters sued New Haven, alleging reverse discrimination, in light of Title VII and also the 14th Amendment’s promise of equal protection under the law. They said that New Haven shouldn’t have thrown out the test.

The district court judge who heard Ricci’s case ruled against him and his fellow plaintiffs. They appealed to the 2nd Circuit, the court on which Judge Sotomayor sits. In an unusual short and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge’s ruling without adding their own analysis.

In 2003, the New Haven Fire Department in Connecticut gave an exam meant to gauge eligibility for promotions to lieutenant and captain. Scores for Hispanics and for African-Americans ranged from 34 to 59 percent of the scores for whites. Because of the way the promotions were structured, no African-American and only one Hispanic would have won any of the 15 promotions. The question then became whether the Civil Service Board would validate the test results.

After five days of hearings, the board decided the exam was flawed.

“The measured thing to do was to decide not to promote based on that exam,” says Acting Corporation Counsel Victor Bolden.

The lawyer for the white firefighters, Karen Torre, says there was nothing measured about the city’s action. She says the decision amounted to reverse racial discrimination, pure and simple.

“There’s no question that their race and skin color were the driving motivation behind the decision not to promote them,” Torre says of the white firefighters.
...
Frank Ricci, the lead plaintiff in this case, is not a naturally gifted test taker. In an affidavit, he said he has dyslexia, that he studied as much as 13 hours a day for the firefighter promotional exam, that he paid someone to read the textbooks onto audiotapes, prepared flashcards and worked with a study group. And he passed.

Still, the test Ricci took was not necessarily a properly designed promotional exam.

Kenneth Yusko, a specialist in employment testing, says psychologists aren’t sure why certain written tests produce racial disparities in certain job categories, but they do.

“Typically, a written test has a large amount of what we call adverse impact,” Yusko says. “It really does reduce diversity.”

Yusko says experts have learned ways to adjust the testing process without compromising merit.

The law surrounding testing is complicated. In 1971, the Supreme Court ruled unanimously that employment tests have to be job-related to ensure that extraneous criteria are not used intentionally or unintentionally to screen out applicants because of their race, gender or ethnicity.
...
Critics of the New Haven test say relying too much on multiple-choice tests and structured oral exams can produce officers who are “book smart” but “street dumb.”

Torre, the lawyer for the white firefighters, responds that the test used by the city was carefully designed by an independent firm, that the oral exams were conducted by panels of predominantly minority examiners from outside the district, and that the takers who studied hardest got the highest marks.

[hey, let’s hear from a natural born politician - lawyer Chris Meade, who represents the city of New Haven. Doublespeak much?]
“The plaintiffs were not passed over for promotions. They were not denied promotions. No one less qualified has been promoted. In fact, no one has been promoted at all,” Meade says.

Just one more piece of America brought down by Affirmative Action. Just like the banks and the mortgage industry. Just like the government. Word is that 2 blacks and 2 hispanics, or more, were supposed to ace the exam. Maybe they knew that ahead of time, so they just rode their color and didn’t bother to study?

I will stand up and cheer if SCOTUS overturns Sotomayor’s inept decision. Discrimination is discrimination, period. This test was specifically designed to be as ethnic-neutral as possible. It’s not the fault of the exam that the people who studied the most got the best grades. Too bad if the required number of blacks and browns didn’t score where they were expected to. And since New Haven had decided to use this exam to base promotions on, it’s beyond unfair for them to change the rules after the results (that they didn’t like) came in. That’s discrimination.

But I fully expect justice to be bitch-slapped by politics. Sotomayor’s decision will stand, because Teh One has nominated her for the Supremes. And overturning her, just before her nomination hearings, will look bad. And anger Teh One. Can’t have that. Heck, overturning her now might even cost her the job. And any wise Latina ought to understand that.


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Posted by Drew458   United States  on 06/28/2009 at 07:36 AM   
Filed Under: • Judges-Courts-Lawyers •  
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