Quotas in the San
Francisco Fire Department—A report on ten years of mischief,
by Ray Batz,
often asked: Why do I bother writing about racial gaps
in test scores? How can such an arcane subject be of any
And yet test scores are at the heart of what may be the most
important upcoming Supreme Court case,
Ricci v. DeStefano. The issue: reverse
discrimination against white firemen.
valuable window onto what affirmative action imposes
upon American organizations. Typically, the contortions our
institutions go through to avoid federal discrimination
lawsuits are hidden from public view, but the
Ricci case exposes
the bizarre, convoluted, and insane way the game is played.
There`s been much talk recently about how the government can
stimulate the economy, how it can make our institutions more
efficient. The President has been coming up with expensive
suggestions—starting with his December call for the
screw in more fashionable light bulbs.
But the surest way for America to become more productive is
for the government to unsnarl itself from institutions that
actually do things.
For example, our society needs to hire and promote competent
firemen, because they keep buildings from burning down and
citizens from dying horrible deaths. And firefighting now
requires not just bravery but also a wide variety of
technical expertise—that is, ultimately, intelligence.
In the Ricci
v. DeStefano case, however, the Obama Administration is intervening
on the side of incompetence. As David G. Savage reported in
the Los Angeles Times:
"The Obama administration, taking its first stand on race
and civil rights, sided with the city officials and said
they were justified in dropping the test if it had `gross
exclusionary effects on minorities.`"
civil rights case could reshape hiring policies, By
David G. Savage, April 6, 2009]
This might come as a surprise to the various pundits who
argued that electing Obama would somehow bring an end to
racial quotas. But it won`t surprise readers of my book,
Half-Blood Prince: Barack Obama`s “Story of Race and
And don`t assume that this case is too trivial for Obama`s
attention. To the extent that the President has a field of
affirmative action law is it. That`s what he taught at
the University of Chicago:
Issues in Racism and the Law“. And he ran hard on
addressing black audiences.)
Frank Ricci, pictured above, 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
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.
(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
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
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
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
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
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
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
legal position. They are subject to
rules and civil rights laws that outlaw favoritism—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
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:
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
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
Now imagine having to solve that while burn victims
are screaming for help.
(Here are some more
free practice exams.)
For leadership positions, the intellectual demands
are much greater. (Here are
Wikipedia links to over
100 different issues involved in basic firefighting.)
Hence, the New Haven plaintiff Ricci reports studying 8 to
13 hours per day for three months to take his promotion
The promotion exam Ricci aced was no off-the-rack quiz. New
Haven paid a reported $100,000 to I/O Solutions to devise a
nondiscriminatory test. It wound up being 60 percent
written, 40 percent oral. To judge the candidates` oral
responses, New Haven paid to bring in 30 veteran fire
department managers from around the country, two-thirds of
The consulting firm`s
"Many of our
public safety clients came to us while struggling to
meet the demands of the U.S. Department of Justice.
Developing solutions for them has made us keenly aware of
the steps that must be taken to ensure the validity,
reliability, fairness and defensibility of every examination
(In case you are wondering, the actual test used in
New Haven is not available online.)
I was surprised to learn that devising firefighting
tests is a booming industry. For example,
I/O Solutions boasts that its entry-level firefighter
test was chosen by the City of Chicago`s consultant over
Why is business so good?
Ricci`s brief gives a clue when it explains the lavish
attention the firm devoted to devising New Haven`s test:
"Aware that New Haven, like other cities, routinely
experiences racial disparities in outcomes of qualifying
exams, IOS went to great lengths in collaboration with city
officials to mitigate that impact to the greatest extent
possible without compromising the integrity of the exams. It
engaged in a painstaking process of job analyses, employing
questionnaires, interviews, and ride-along exercises with
incumbents to identify the importance and frequency of
essential job tasks. "
The firefighting business doesn`t really differ much
from town to town, so why all the hand-holding?
The brief continues:
"There was a deliberate overrepresentation of minority
incumbents in this process. IOS identified professional
texts and other source material in collaboration with NHFD
Chief Grant and Assistant Chief Dumas, who is black. "
It took me a while to figure out the reason for the custom
testing. You have to remember the
rules of the game that produce this Kabuki-like ritual
that provides so much work for these psychometric
involved must pretend that the reason Non-Asian Minorities
(NAMs) do worse than whites in virtually every other city in
America is because of some
undiscovered flaw in the testing system.
For example, when federal District Court trial judge Janet
Arterton Bond upheld New Haven`s treatment of Ricci and
"It appears that the reasons for testing disparities remain
elusive. Dr. Helms
[the city`s "expert" witness] testified that many
theories exist, but experts on standardized testing
nationwide have been unable to satisfactorily fully explain
the reasons for the disparity in performance observed on
But ignorance is strength for the diversicrats—because, as
the Judge claimed,
"Notwithstanding the shortcomings in the evidence on
existing, effective alternatives, it is not the case that
defendants [New Haven] must certify a test where they cannot
pinpoint its deficiency explaining its disparate impact
under the four-fifths rule simply because they have not yet
formulated a better selection method."
In other words, we`re all going to pretend that—although in
several decades of trying, nobody has come up with a
method” (i.e., one that promotes more NAMs without too
many innocent victims suffering fiery deaths)—that doesn`t
mean one can`t be found Real Soon Now.
Hope and Change!
And that`s a big part of a test design firm`s implicit sales
pitch. Sure, they imply, everybody else has always failed to
find the Holy Grail of a valid test that will produce
racially equal results. But this time, doggone it, we`re
going to try extra hard and get it right!
So the consulting firm comes to town and laboriously asks
anybody who is likely to later raise a stink over the
results what they think should be on the test. They get as
many NAM fire department figures as possible to okay the
Eventually, when the NAMs sue the city for discrimination
because they didn`t score well on the test, the consulting
firm comes back to testify (presumably at its usual
per diem rate)
about all the NAMs who signed off on the test.
It`s a repetitious way to make a living. But it`s a living!
Alternatively, as in the New Haven case, the city caves in
to racial pressure and throws out the test results.
Whatever. The city`s check cleared!
If the client really wants to rig the test, well, that can
be arranged, too. For example, Chicago has apparently
attempted to get around the EEOC`s fourth-fifth`s rule by
having I/O Solutions devise tests
that practically everybody passes them. Mayor Daley boasted
in a 2006
"The City of Chicago today announces that over 17,000
applicants passed the Firefighter/EMT entry-level exam …
Nearly 20,400 applicants took the exam …"
Hilariously, this is a pass-fail exam that was passed by 85
percent of the people who walked in off the street because
they wanted a job. The city then hired individuals
from among those 85 percent.
Similarly, in 2007, Chicago gave its first police sergeants
exam in years … and
out of eight passed.
My advice to Chicagoans: Remember that old 1960s joke about
“Next time you need a cop,
call a hippie”? Well, keep in mind this idea of
calling a hippie. As the old cops and firemen retire, it may
be your best chance.
Why do controversies
over reverse discrimination against white firemen trying to
get promoted generate a fair amount of favorable publicity?
For instance, last month a court awarded $6 million dollars
to the last 75 of 175 white firemen discriminated against on
the City of Chicago`s 1986 promotion test—a
23-year struggle, but one the white firemen finally won.
Are white firemen particularly discriminated against?
Why? Because firemen
have friends. They`re connected—to each other, and to
Firemen risk their lives to save our lives. And on
9/11/2001, a stunning
343 New York
firemen gave their lives—a number that deserves to be
inscribed in our culture as indelibly as
was engraved in the memory of
"In the 1999 test, about 90 percent of white applicants had
a passing score, but only 61.2 percent of black and 77
percent of Hispanic test-takers passed, according to the
That`s a 1.0 standard deviation difference between whites
and blacks, which is typical for most kinds of cognitive
tests. It`s what we see nationally on
the LSAT (1.15).
(Hey, I`ve got an idea—let`s abolish the LSAT and not let
anybody be admitted to law school for five years!…Wait a
minute, clearly we can`t do
that, because the
LSAT is taken by the right kind of people, the important
people, the kind of people who do sophisticated things like
look up citations and place conference calls. It`s not taken
by the peons who merely rescue citizens from burning
buildings. Sheesh, how smart do you have to be to do
You`ll note that, unlike reverse discrimination against
white firemen on promotion exams, which can go to the
Supreme Court, discrimination against unemployed whites
taking fire departments` entry-level hiring exams is routine
and passes little remarked outside of local newspapers. For
example, on March 26, 2009, Jen McCaffery in the
"Portsmouth, VA—The city has settled a racial discrimination
lawsuit contending that a test used to hire entry-level
firefighters rejected a disproportionate number of African
American candidates. … As part of the fire department
settlement announced Wednesday, Portsmouth will no longer
administer the written entrance exam the Justice Department
“Since 2004, the test has been administered four times.
White applicants passed at a rate of 85.9 percent, while the
rate for African American applicants was 42.4 percent,
according to documents filed Wednesday in federal court in
The reporter isn`t oversimplifying the federal government`s
case. That`s all
there is to it: blacks did bad on a
nationally-used standardized exam. You can read the
complaint for yourself and see if they presented any
actual evidence of discrimination.
Portsmouth saw about the typical
white-black gap (1.27 standard deviations).
"Portsmouth City Attorney Tim Oksman wrote in an e-mail that
the city was `very pleased` to reach the agreement with the
`It will increase diversity within our workforce—a goal
support——and it will do so in ways that do not diminish
professionalism, and at a very acceptable cost,` Oksman
A very acceptable cost … as long as you don`t count the
death because you didn`t hire the best.
But note that future white Portsmouth firefighter applicants
who get turned down by whatever cockamamie selection system
the city rigs up to avoid the wrath of the Justice
Department will never know the reason why. Because
applicants are just a bunch of random white guys, they can
be pushed around. You can`t fight City Hall.
In contrast, once white guys are in the Fire Department,
they have rights and connections, so they can`t as easily be
This doesn`t mean that Ricci and friends will win in the
Supreme Court. The last time the Supreme Court considered
affirmative action (the
and Gratz cases of 2003), it just made things
In contrast, we can be sure that the Obama Administration
will speak with one voice on this topic so close to the new
Last year, I
pointed out that GOP nominee John McCain could readily
defeat Obama by getting tough on his radical record,
especially on affirmative action—but I also predicted,
correctly, that McCain wouldn`t have the necessary
“Right Stuff” to
But in the end, New Haven`s firefighters, and white
Americans generally, will be forced to turn to political
leadership that will defend them.
In that sense, by backing anti-white quotas, Obama`s
playing with fire.