Questioning Ricci: Time To Abandon The EEOC`s Four-Fifths Rule

Last week, the

reverse discrimination case
came up before
the Supreme Court for

oral questioning
. A lawyer representing the New Haven
firemen—who are suing the city for refusing to promote them
for the last half decade because zero blacks passed the 2003
promotional exams—was grilled by the liberal justices. The
Obama Administration`s representative, Deputy Solicitor

Edwin Kneedler
, and a lawyer representing the city were
roasted by the conservative justices.

Haven`s attorney claimed that the city had strong evidence
for discarding the test as invalid

after finding out the results by race
. But Justice
Samuel Alito pointed out the preposterousness of that claim
in a scalding rhetorical


city] chose the
company that framed the test, and then as soon as it saw the
results, it decided it wasn`t going to go forward with the
promotions. The company offered to validate the test. The
City refused to pay for that, even though that was part of
its contract with the company. And all it has is this
testimony by a competitor,
who said—who hadn`t seen the test, and he said,
I could do a better test—you should make the promotions
based on this, but I could give you—I could draw up a better
test, and by the way, here`s my business card if you want to
hire me in the future.

“How`s that a strong basis in the

Argument transcript,


Nor was Chief Justice John Roberts
impressed by New Haven`s claim that they had to junk the
completed test results because of the danger of being

sued for discrimination against blacks
under the

“disparate impact”
interpretation of Title VII of
the Civil Rights Act. (Which is now, apparently, more
important than the
Protection clause
of the 14th Amendment). He said:

ROBERTS: It seems to me an odd argument to say that you can
violate the Constitution because you have to comply with the

Deputy Solicitor General

Ed Kneedler
barely got a chance to open his mouth before
Roberts scoffed at the

Obama Administration`s sincerity on race:

KNEEDLER: Mr. Chief Justice, and may it please the Court:
This Court has

long recognized
that Title VII prohibits not only
intentional discrimination but acts that are discriminatory
in their operation.

ROBERTS: With respect to both blacks and whites, correct?


ROBERTS: So, can you assure me that the government`s
position would be the same if this test—black
applicants—firefighters scored highest on this test in
disproportionate numbers, and the City said we don`t like
that result, we think there should be more whites on the
fire department, and so we`re going to throw the test out?
The government of United States would adopt the same


last thing Obama wants
is for the Supreme Court to issue
a landmark, precedent-setting decision in the
Ricci case. The
public finds the courageous fireman plaintiffs to be
sympathetic and the justice of their complaint to be
commonsensical. Quotas could easily be scuppered based on
this case.

Accordingly, the Administration is calling
for the case to be

all the way back to a jury trial over whether
the city acted with racial malice—i.e., Obama wants
Ricci to go away,
far away.

In reality, however,
Ricci is not an unusual case with particularly complicated facts.
It`s just business as usual in American society.

When President Obama graduated from

Harvard Law School,
he chose, out of hundreds of job
offers, to work for a Chicago law firm that specialized in
suing over purported discrimination against blacks. For
example, as I point out in

Half-Blood Prince: Barack Obama`s “Story of Race and
Obama made one of his rare court
appearances to accuse Citibank of not giving enough
mortgage money to minorities
. The
Chicago Sun-Times
reported in 2007:

"Obama represented Calvin Roberson in a 1994 lawsuit against

the bank

systematically denied mortgages to African-American
and others from minority neighborhoods." [
Lawyer Obama Was Strong, Silent Type

December 17, 2007 By Abdon
M. Pallasch

(By the way, how`s

working out for us these days?)

Most discrimination cases in recent
decades have been based not on evidence of racial animus,
but merely on

showing that minorities didn`t wind up with
as many goodies as whites did.

The argument:
assuming the races
are equal in merit, there
must be
discrimination somewhere in the system. It`s simple logic!

nobody in public life dares point out the overwhelming
social science evidence that non-Asian minorities tend to
be, on average, less creditworthy, less intelligent, and
less law-abiding without being smeared as a racist, this
transparently bogus ploy has enjoyed massive success over
the years.

Obama is
committed to preserving the status quo, in which the deck is
rigged against whites by the Equal Employment Opportunity

Four-Fifths Rule

"A selection rate
for any race, sex, or ethnic group which is less than
four-fifths (4/5) (or eighty percent) of the rate for the
group with the highest rate will generally be regarded by
the Federal enforcement agencies as evidence of adverse
impact, while a greater than four-fifths rate will generally
not be regarded by Federal enforcement agencies as evidence
of adverse impact."

In other
words, if 50 percent of whites pass the test, 40 percent or
more of each minority group must pass the test, or the
burden of proof is on the employer to vindicate the
selection process. This can be so expensive and uncertain
that many employers just impose hiring and promotion quotas
upon themselves.

This EEOC rule applies to
as well as government employers. You just hear
complaints from firemen
because there are
Civil Service
that are supposed to prevent post-hoc fiddling.
(And, perhaps, because firemen are

than most people.)

Obama is likely aware that the Four-Fifths
Rule is objectively ridiculous. On none of the

major tests
used by professional and graduates schools
do blacks come close to scoring at a percentile 80% as high
as whites. On the Graduate Record Exam-Verbal, black college
graduates on average score only three-eighths as well as
whites (i.e., at what would be the 18th percentile for
whites). And that`s their best showing. On the Medical
College Admission Test, blacks only reach the one-fifth

And yet you aren`t supposed to mention
these facts in
polite society.
As a result, almost nobody thinks about
them in a systematic fashion. That`s why the liberal
Justices can get away with acting as if the
Ricci results, in which blacks scored at the three-eighths level on
the Lieutenant`s test (exactly like the GRE-V) and the
one-fifth level on the Captain`s test (exactly like the
MCAT) are some anomalous mystery which a
“better test”
could somehow make disappear.

reality, there only two ways to consistently make the racial
gap fit within the EEOC`s Four-Fifths Rule:

  • Cheat.

    Don`t rely on written tests where the graders can`t tell
    the test-taker`s race. Put most of the weight on oral
    evaluations, and make sure to pick judges willing to
    play ball to have the racial balance come out right.

In New
Haven, the written exam got 60 percent of the weight, and
the oral 40 percent. The city stacked the deck by making the
oral exam judges two-thirds minority, but that wasn`t

  • Make the
    test so easy that almost everybody passes
    Chicago now gives tests that 85 percent pass (roughly 90
    percent white and 80 percent black), then chooses
    randomly from this horde of not utterly incompetent

liberal justices put much effort into asking hypothetical
questions about what might be the far-reaching consequences
of ruling that employers must always act in a racially
neutral manner.

there`s no need for a positive dictate from the Supreme
Court about how employers should act in every situation.

rotten core of the affirmative action racket in America is
the ridiculous Four-Fifths Rule.

The Supreme Court famously drew upon social
science research

v. Board of Education.

Granted, sociologist Kenneth B. Clark`s

experiments with dolls
were primitive and turned out to
largely fallacious.
By 2009, however, the scientific
evidence relevant to
is now overwhelming that the EEOC`s Four-Fifths
Rule is absurd.

Court should take the social science record into account and
abolish the Four-Fifths Rule as corrupting and undermining
of competence.

If we
must have a quantitative guideline, a One-Fifth Rule, such
as we find with the MCAT, would be far more reasonable.

What the Obama Administration may well be
hoping for is 4-1-4 split decision, as in the notorious 1978

case, in which the man in the middle, Lewis
Powell, ruled, in effect, that the University of California
could continue using racial quotas as long as it called them
“goals” instead.
Justice Anthony Kennedy would be showered with
new respect
and be the toast of Georgetown if he
could finagle a similar outcome.

I suspect Obama would be very happy if
Kennedy could, say, assuage the public`s sense of fair play
by giving Frank Ricci a promotion, just as

Allan Bakke
was eventually allowed into the UC Davis
medical school, while keeping
overall affirmative action swindle intact
for another

though, Kennedy might surprise us.

[Steve Sailer (email
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