Frank Ricci is the lead plaintiff of a group of New Haven, Connecticut firemen (17 whites and one Hispanic) who took the city’s fire department promotion test in late 2003 and earned advancement to the rank of lieutenant or captain.
No blacks scored high enough to qualify for promotions. On the Lieutenants’ exam, the mean black score would have fallen at the 20th percentile among whites. (Hispanics scored the same as blacks). On the harder Captain’s exam, the mean black score fell at the 10th percentile for whites, while the average Hispanic scored at the 18th percentile. (You can see the individual test results at Adversity.net.)
There is nothing surprising or anomalous about these percentiles. They’re almost identical to blacks’ and Latinos’ results on professional school tests such as the LSAT used by law schools and the MCAT employed by medical schools. Blacks average at the 12th percentile of the white distribution of scores on the LSAT, which was taken by every single lawyer involved on all sides of the case.
(New Haven, by the way, is home to the Yale Law School, which enjoys the highest LSAT scores in the country. But punditry by Yale Law professors on this backyard case has tended to be muted. Perhaps they are torn between their liberalism and their desire not to die needlessly due to inept firefighters.)
A prominent black supporter of New Haven mayor John Stefano objected to the racial hue of the fire department’s results. So in 2004 the mayor talked the Civil Service Board into throwing out the test on the grounds that otherwise the city might get sued by blacks for using a test with “disparate impact” on protected minorities.
And the federal Equal Employment Opportunity Commission does indeed enforce a guideline that a “selection rate for any race, sex, or ethnic group which is less than four-fifths . . . of the rate for the group with the highest rate will generally be regarded . . . as evidence of adverse impact”.
In other words, if, say, 50 percent of whites pass your test, then 40 percent of blacks darn well better pass or the federal government will want to know the reason why.
Of course, everybody involved more or less knows the reason why: on average, blacks aren’t as smart as whites. But, at all costs, you must act like you don’t know that. If you know what’s good for you, you’ll wield Occam’s Butterknife instead of his Razor.
New Haven hasn’t bothered to hold another exam since 2003—presumably because it knows that any reasonable test would produce roughly the same results. Instead, it just hasn’t promoted anybody in five years. Instead, it has filled posts with “acting” lieutenants and captains of the politically desired colors.
Not promoting anybody may seem ridiculous, but it’s become quite common in America’s cities. For example, Chicago spent $5 million dollars devising an absolutely bulletproof non-discriminatory police sergeant’s test in 1994, only to have 109 of the 114 top scorers turn out to be whites. So Mayor Richie Daley just refused to promote anybody for several years, until he could push through his alternative system of promotions based on “merit” (“merit” being defined, in effect, as whatever the finely honed political instincts of Richard M. Daley found to be least trouble for his career).
The cities find themselves in an absurd legal position. They are subject to civil service rules and civil rights laws that outlaw favoritism—and, simultaneously, to EEOC and Department of Justice regulations that mandate it.
This leads to even more pretzel logic. Thus New Haven claimed that it wasn’t discriminating against white firemen—it was just trying to avoid being sued for discriminating against blacks!
And, incredibly, the federal Second Circuit Court of Appeals bought that rationale by a 7-6 vote (with potential Obama Supreme Court nominee Sonia Sotomayor one of the seven).
The Second Circuit’s decision was all the more incredible because the distinguished judge Frank Easterbrook of the Seventh Circuit had already shot down the same circular logic in 2004, when Chicago tried it the Biondo case involving testing for promotion of Chicago firefighters.
Easterbrook incredulously asked:
"[T]he premise of the City’s argument is that [the EEOC] regulations supply a compelling governmental interest in making decisions based on race. How can that be? Then Congress or any federal agency could direct employers to adopt racial quotas, and the direction would be self-justifying: the need to comply with the law (or regulation) would be the compelling interest. Such a circular process would drain the equal protection clause of meaning."
(Sorry about all the Chicago examples—I used to be a Chicagoan so I can make more easily make sense of the contorted history of public safety employment testing in the Windy City. But you can find similar cases in most cities.)
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.