Despite likely having more firemen than it really needs, being a Chicago fireman is kind of like being a Harvard student: there are far more applicants than openings. In 1995 in Chicago, there were about 40 test-takers for each job opening. In contrast, when Supreme Court nominee Elena Kagan was dean of Harvard Law School in 2006, there were about 12 applicants for every place.
In 2005, finally, Judge Gottschall, a graduate of Stanford Law (LSAT range 168-172), issued her ruling: total victory for the black plaintiffs. Chicago should just pick randomly among anybody scoring at the 16th percentile on up.
... In 2006, Chicago finally gave another firefighter’s hiring test. To avoid disparate impact, it made the test so easy that 96 percent of whites passed it. Then it chose randomly from all who passed.
Judge Gottschall’s opinion would be the kind of thing people would laugh about if you were allowed to have a sense of humor about things like this. However, judges never have to worry about, say, Jon Stewart making fun of them on TV if they say stupid things about race as long as what they say is socially acceptable.
Judge Gottschall’s 2005 opinion was dopey in exactly the same way as Judge Garaufis’ 2009 opinion in the New York fire hire test lawsuit brought by Alberto Gonzales when he was George W. Bush’s attorney general: obtuse, ignorant, blinkered, and elitist.
Judge Gottschall condemned Chicago as racially discriminatory for not hiring randomly from all those who scored 65 or higher. That’s the 7th percentile of white guys who’d like to be a fireman, which is scary bad.
The essence of firefighter disparate impact law is that judges never, ever learn anything from all the other firefighter disparate impact cases. Each kind of test gives the same result in racial terms, but that is never admitted as evidence for anything, or even admitted at all. (The only way that’s been found to close the racial gap is to get rid of blind-grading: i.e., cheat.)
Disparate impact, however, does not apply to some institutions. The military takes virtually no enlistees who score below the 31st percentile on its AFQT IQ test.
Or, consider that when she was dean of Harvard Law School, Elena Kagan required all applicants to take the Law School Admissions Test even though the LSAT has ferocious disparate impact. The average black score on the LSAT in 2005-2006 was 143, which would fall at only the 12th percentile of the white range. Dean Kagan’s 2006 freshman class had scores ranging from 169 out of 180 at the 25th percentile to 175 at the 75th percentile.
Now, Kagan didn’t need to demand such stratospheric test scores from applicants. She could have admitted Harvard Law students random from the top five-sixths of applicants. You don’t need to be that smart to pass Harvard Law or the bar exam. She just wanted exceptionally bright students.
But it’s okay for Harvard Law School to use the LSAT because it’s Harvard Law—not a bunch of moron firemen who only have to know to point the open end of the hose at the flames, right? Just ask Dean Kagan!
(In fact, that would be a fun question to ask her. Senator Sessions?)