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

Last week, the Ricci 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 General Edwin Kneedler , and a lawyer representing the city were roasted by the conservative justices.

New 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 question:

"[The 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, Mr. Hornick, 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 evidence?" [Oral Argument transcript, PDF]

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 Equal Protection clause of the 14th Amendment). He said:

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

Deputy Solicitor General Ed Kneedler barely got a chance to open his mouth before Roberts scoffed at the Obama Administration's sincerity on race:

"MR. 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.

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


CHIEF JUSTICE 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 position?"

The 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 remanded 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 America's Half-Blood Prince: Barack Obama's "Story of Race and Inheritance," 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 Citibank, charging the bank systematically denied mortgages to African-American applicants and others from minority neighborhoods." [As Lawyer Obama Was Strong, Silent Type December 17, 2007 By Abdon M. Pallasch]

(By the way, how's that working out for us these days?)

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

Since 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 Commission's 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 private employers as well as government employers. You just hear more complaints from firemen because there are Civil Service laws that are supposed to prevent post-hoc fiddling. (And, perhaps, because firemen are braver 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 level.

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.

In 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 enough.

  • 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 applicants.

The 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.

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

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

The Supreme Court famously drew upon social science research in Brown v. Board of Education. Granted, sociologist Kenneth B. Clark's experiments with dolls were primitive and turned out to be largely fallacious. By 2009, however, the scientific evidence relevant to Ricci is now overwhelming that the EEOC's Four-Fifths Rule is absurd.

The 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 Bakke 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 "strange 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 the overall affirmative action swindle intact for another generation.

Perhaps, though, Kennedy might surprise us.

[Steve Sailer (email him) is movie critic for The American Conservative. His website features his daily blog. His new book, AMERICA'S HALF-BLOOD PRINCE: BARACK OBAMA'S "STORY OF RACE AND INHERITANCE", is available here.]