My new column at VDARE.com is about last week's Supreme Court decision in the Lewis v. Chicago case: yet another firefighter disparate impact discrimination lawsuit. It was a victory for Elena Kagan's office of Solicitor General. Nobody paid any attention to this case because they were all worked up over how Rand Paul's views would work out if America fell through a time warp and went back to 1960.
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?)
Read the whole thing there (there's lots more) and comment upon it below.
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24 comments:
Following your point on firemen who treat it like a vocation, another interesting contrast is the elite assumption that teaching should and can be treated like more-than-a-job-a-vocation while something mindless like fighting fires needn't be. Like you said in an earlier post there's an assumption that every student will be made equal if we can just make every teacher a KIPP-esque trench warrior devoting their youth to the vocation of making every kid equal. The Democrats' sacred teacher unions are even dispensable in the eyes of the elites now that they are seen as standing in the way of this holy service. But fighting fires is not so important. Treating it like a vocation is unnecessary, weird even.
Unanswerable arguments indeed.
Our liberal elites, such as Judge Gottschall, bring the suite of emotions elicited by babies and pets to the task of caring for racial minorities. There is something about cooing and handing treats to the mewling and helpless that fires(!) their ambitions.
Why doesn't the US Supreme Court declare Disparate Impact unconstitutional, as violating Equal Treatment? There seems far more basis for that than for eg Roe vs Wade.
The problem with fireman testing to me seems like an easy one to solve. Since the job requires strength and stamina, can't just some physical fitness tests be added and only a total score provided. With some research (ample of consulting business available) tests that strongly favor desirable minorities and involves some creative use of firefighting equipment could be identified. Then it is just a matter of secretly weighing the test results until you get the quota-correct outcome desired.
Naturally, this creates a problem for petite women who desire to become (and, obviously have every right to!) firewomen. I think much easier tests could be designed for women because I think there is fairly well-spread acceptance for the idea that men and women have slightly different characteristics. Women will make up for their inability to carry people to safety with their, ummm, intuition.
My dad was a firefighter in Philadelphia. I knew most of the guys who worked at his firehouse, and nobody would mistake any of them for rocket scientists, but you do have to know a lot of stuff about the apparatus, first aid, combustion, building codes, etc. 99 percent of firefighting is pretty mundane, grass fires, house fires, restaurants and small businesses, but once in a while stuff happens.
...Engine 133 was set up on the east side of Tank No.231 at Avenue “Y” at 4th Street applying foam to the tank. Three members were attending to the apparatus and wading in the foam-water-petroleum mixture which was accumulating on the ground. Commissioner Rizzo and Gulf Refinery manager Jack Burk were on an overhead catwalk nearby observing the fire fighting operation. Without warning, and in full view of Commissioner Rizzo and Burk, the accumulating liquid surrounding Engine 133 ignited, immediately trapping the three firefighters working at Engine 133. Instinctively and without hesitation other nearby firefighters dove into the burning liquid to rescue their comrades, not aware of the danger to themselves. Five more firefighters would be consumed by the advancing fire.
http://www.fireworld.com/ifw_articles/philadelphia_1975.php
Engine 133 was the foam pumper from my dad's firehouse, which was Engine 33. My dad was not among the guys killed that day--he was on a different shift--but he could have been.
There is some justification for the cut-off, as opposed to rank-ordering, approach to selection. Personality assessment firms find that, while tested intelligence and other traits do correlate with job performance, this correlation can fade above specific scores for certain jobs. Very bright people can become bored with or indifferent to job requirements, just as less bright people must struggle to meet them.
But these suitable cut-off points are established by exhaustively checking scores against job performance, not by rump-covering judges trying to satisfy disparate impact requirements.
One suspects that the unspoken reason for all this re-jiggering of tests is that high-SAT, very well-paid judges fear that, without ample positions in fire, police and other municipal jobs, a much larger portion of urban blacks will become even more violent, embittered and resentful. Of course, rump-covering judges helped create the self-destruction of urban blacks with earlier decisions on criminal justice and welfare.
"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."
There are some jobs that even liberals won't be too stupid on racially (such as the military), and the elites will never denigrate their own professions. Firefighting they think is safe because a) there aren't too many fires, especially not in the areas they live in (they don't live in apartment complexes or areas where people do stupid things that start fires), and b) they think it's an easy job that only requires physical labor.
I always laugh when I hear law professors supporting affirmative action. They absolutely will not move to a system like Chicago's firefighting system because it will denigrate the reputation of their school. That's why they don't go for top 10%/20%/etc. rules. They'll openly say they want to take the best from each racial group. That limits the impact on the overall quality but they still get to feel good about themselves. Watch their personal decisions: you will never see law professors have black students work with them on their own projects. They don't use them as research assistants, no matter hot they are for AA. Just like it's doubtful they have black physicians, accountants, lawyers, etc. handling their personal affairs.
I am surprised that there isn't more litigation involving Indian body shops based on disparate impact.
For example, in our smallish midwestern city there is an Indian immigrant who runs a body shop for programmers.
He hires almost 100% imported Indians in a town that is 90% white and less than 1% Indian.
He claims that the prevailing wage is $44K for programmer/analysts in his H1-B visa filings.
That justification may work to get him free visas for his Indian peon programmers, but it doesn't address the issue of disparate impact in hiring.
So why haven't I seen any plaintiff go after this sort of "disparate impact" racial discrimination?
We know who the body shops are. We can find them easily by looking at their H1-B filings. They are clearly discriminating on the basis of national origin (Indian versus American) and race (browns versus whites).
The employers love these companies. When they use them they get cheap Indian rental workers (NOT employees) and therefore are immune to all the racial issues involving "employment". But the body shops themselves are not immune, it seems to me, since their hiring is utterly race and national-origin based: Indian.
So help me out, guys. As I say, I am in a unique position (don't ask) to go after these body shops for discriminatory hiring practices. The claim seems easy to prove. So, what am I missing?
Are there any American immigration lawyers that are still loyal to their country out there?
I sincerely wish a senator would ask her how Harvard law school can take the top LSAT students but the Fire Dept can't take its top applicants.
Everyone should listen to "The Affirmative Action Hoax" author Steve Farron's speech at the 2009 Property and Freedom Society conference.
If they are getting several times the number of qualified applicants that they have positions for, can’t they, uh, what’s the phrase I am searching for, CUT THEIR FRIGGIN' PAY AND BENEFITS? This is what is really depressing about all these big-city police and firemen stories. We are always being forced to choose between the racial shakedown artists and the government union shakedown artists. Can’t we put both of these bunches on a ship and send it to break Israel’s blockade of Gaza?
But what exactly is going on here? Am I supposed to believe that blacks have low IQs and can't pass a fireman test? That seems specious; I doubt there were complex math problems on there. If low IQ explains it, then how does it relate? Which questions could divide people among IQ lines?
I hope Rand Paul or his speechwriters are reading.
In a case closer to home for me, the Forest Service agreed to hire 24% hispanic fire fighters in California. MALDEF later filed a noncompliance complaint and convinced the judge that the 31% quota for laborers should apply, because "these are just ditch digging jobs."
as an asian-male i am of two-minds on disparate impact. from the looks of it: it looks like bullshit.
but, a lot of smart people (including smart white people) seem to be in favor of it.
are all these smart people, in fact, idiots?
i don't know.
right now, i'm inclined to trust my instincts and just say that disparate impact is pure stupidity and nothing but racial spoils.
All those smart people are thinking with their heart instead of with their head.
Steve, this is one of your best yet - it's stuff like this that has me reading your blog every day.
The hypocrisy here is just stunning. The Chicago Fire Department is supposed to pick its firefighters at random from those who score above the 16th percentile on the qualification test. Yet law schools (especially elite ones like Harvard and Stanford) use the LSAT (with its huge disparate impact) to select their students. Shouldn't they be required to select their students the same way that the Chicago Fire Department picks its personnel? If not, why not?
Keep up the good work.
A Tale of Two Civil Service Tests.
This story is from the sixties but I think it's relevant today. I had just graduated with a degree in psychology and thought I should get a doctorate. OK that was a stupid idea but it was my stupid idea. My friends told me the avenue to an advanced degree was the fire department. The fire houses in the Avenues (quiet neighborhoods that seldom had any fires) were filled with grad students - good pay and lots of free time to study. Those who weren't enrolled in a graduate degree program were often engaged in serious hobbies like building a sail boat or restoring a British sports car. These were cushy jobs and only those with high IQs could get them because the "g" loaded entrance exams were ranked by score.
I didn't try this route because of my mediocre eyesight. For a while there the San Francisco Fire Department was filled with scholars who didn't wear glasses.
A similar civil service exam at the time for Youth Guidance Counselor required you to lift a fifty pound dumbbell ten times with each hand. Even big guys had to train for that test - that's quite challenging - but the weight and number of reps was fixed. That is to say it operated like a cutoff score. Strength was important for counselors (essentially a prison guard) just as IQ was important for firemen. But the counselor exam didn't rank applicants in order of the number of reps or the maximum weight they could manage. If they had all the positions would have been filled with competitive power lifters.
As it was the fixed weight and fixed reps criteria was enough to assure that counselors were plenty big and strong. In the job interview you also were asked about your college sports experience. They weren't much impressed by my basketball record. It was my judo metal that got me the job.
A sensible employment strategy for firemen would be like the test for Youth Guidance Counselor. You establish a cutoff score for a relevant criteria and then ask relevant questions in the personal interview. Firemen need to be smart - I know this because I live in Oakland the site of the largest urban fire in US history which was caused by a local fireman's stupidity. But firemen don't need to be studious or scholarly.
High school graduates have IQs about 115 (one sigma). College graduates are about 120. This should be enough. Nobel prize winners are at about 145 (three sigmas). We don't need these intellectual resources in our firehouses. Set the cutoff at around 115 and then select among those who pass based on other attributes.
Alas the problem has been that an IQ of 115 is one sigma above average for whites but it's two sigmas above the black mean. That means that while more than 15% of whites would qualify only 2% of blacks would.
Albertosaurus
Body Shop Guy
Pls post or link to instructions on how to research company H1B filings.
Please post it in comments to this blog.
Thanks.
Asian Guy
It's white liberals (mostly) who feel guilt or think they are making the world a better place.
They do not consider the "invisible victims" of affirmative action, mostly white men.
This seems absolutely crazy. Thanks Steve, as always, for writing about this mess.
How do we fight it?
What do cities do? Do they emulate NYC & Chicago policies and discriminate against white men?
Perhaps the test would have less of a disperate impact if only those who passed criminal background checks could take it.
Here is guerilla tactic.
If you are white or asian, take the test and deliberately flunk it.
It's just the fire department, not something important like the "right" kindergarten.
Anonymous, the H1-B data can be found many places. Below is a good source:
http://www.flcdatacenter.com/CaseH1B.aspx
Type in employer and state and see who has been applying for foreignesr to come replace you. Under federal law they must make their files available for public inspection by anyone who drops in and asks to see them. They also have to post notices at the "workplace" of the American workers who are being replaced. Does a 100% Indian bodyshop run out of some cheesy rent-a-cubicle office do this? Nope.
For example, in our smallish midwestern city there is an Indian immigrant who runs a body shop for programmers.
He hires almost 100% imported Indians in a town that is 90% white and less than 1% Indian.
He claims that the prevailing wage is $44K for programmer/analysts in his H1-B visa filings.
That justification may work to get him free visas for his Indian peon programmers, but it doesn't address the issue of disparate impact in hiring.
So why haven't I seen any plaintiff go after this sort of "disparate impact" racial discrimination?
As a lawyer, I dream of a case like that.
The race of the plaintiff doesn't matter, and it doesn't matter who sits on the jury -- Black, White, or Mexican. There will be no sympathy for the "body shop". It's the ultimate in "citizenism".
We know who the body shops are. We can find them easily by looking at their H1-B filings. They are clearly discriminating on the basis of national origin (Indian versus American) and race (browns versus whites).
You are a smart guy. That's exactly the way I see it, and I'm a lawyer. Please feel free to contact me at bentillman2003@yahoo.com.
If more firefighting applicants had names like Gottschall and Kagan, I bet the courts would feel differently about how they hire.
Has anyone dug up the names of the people Kagan hired at Harvard Law yet?
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