That Sotomayor Decision: One Law For Frank Ricci—Another For Emily Bazelon?
This Monday, June 29, is supposed to be
the day when we`ll
find out if the Supreme Court overturns Sonia
notorious decision in
Ricci v. DeStefano. Sotomayor permitted New Haven to
junk the results of its fire department promotional exams
too many whites had done well on them.
Slate ran a 5000
word article about the New Haven Fire Department,
Ladder, by senior editor Emily Bazelon and intern
Nicole Allan. The article turns into an inadvertent
reductio ad absurdum
of the Sotomayorian conventional wisdom.
Bazelon`s ultimate objection to New Haven`s discarded 2003
testing process is that it wasn`t subjective and arbitrary
enough to promote as many minorities as she`s like. She ends
her article with a ringing call for a more random selection
method that will produce
knowledgeable fire captains and lieutenants:
"The city could come
up with a measure for who is qualified for the promotions,
rather than who is somehow best. And then it could choose
from that pool by lottery."
Bazelon apparently doesn`t know that
lotteries are exactly what
cities such as Chicago are already doing with the
results of firefighter tests, in an attempt to comply with
the Equal Employment Opportunity Commission`s
Rule". This regulation puts the burden of proof in
discrimination cases on employers when blacks aren`t hired
or promoted at least 80 percent as often as whites.
There`s a reason you don`t see much in the
newspapers about cities hiring firefighters by lottery: this
method is terrifying
to anybody who might someday be trapped in a burning
building. So politicians don`t explain too vividly to the
public what exactly they are up to.
the new Chicago hiring test passed all but the
bottom 15 percent of the folks who walked in off the
street wanting jobs as firefighters. And then, just as
Bazelon recommends for New Haven, the Chicago city
"randomly" from the top 85 percent—the
crème de la crème
Disparate Impact Age.
Chicago have to go so low?
You can use Microsoft Excel`s
function to figure out how low you must set the bar when
"normally distributed" populations to allow blacks to
pass a test at the EEOC-mandated rate of Four-Fifths as much
whites average an IQ of 100 and blacks average one standard
deviation lower at 85. (Keep in mind that this model is
useful not just for IQ but for most valid cognitive
predictors of job performance.)
set the IQ cutoff at 100, then 16 percent of blacks and 50
percent of whites pass. Sixteen divided by fifty is only 32
percent, or about One-Third, which doesn`t come close to
meeting the EEOC Four-Fifths regulation.
about setting a minimum IQ of 85? That seems pretty low. Can
you get away with that minimal of a standard without the
EEOC siccing the burden of proof on you?
no. Unfortunately, an 85 IQ minimum means that 50 percent of
blacks and 84 percent of whites pass. That wouldn`t even
meet a Three-Fifths Rule, much less the Four-Fifths Rule.
Not until you cut the IQ bar down to 74
EEOC be truly happy: 77 percent of blacks and 96 percent
of whites pass. Exactly Four-Fifths!
But, seriously, what`s the point of even
giving a test so
easy that 96 percent of white people can pass? White people
aren`t so smart that somebody at the
5th percentile of the white bell curve is going to make
an adequate firefighter.
Bazelon`s lotteries are an incredibly
stupid idea because cities end up hiring incredibly stupid
people of all races. My own opinion is that, before matters
come to this absurd pass, citizens would be much safer if
fire departments gave up and used
explicit racial quotas. Then at least fire departments
could hire the top-scoring firefighters from within each
However, it never seems to occur to
Bazelon to look at the countless similar situations in which
whites, on average, both out-test and out-perform blacks and
Hispanics. For example, New Haven`s own Yale Law School
makes intensive use of the
Law School Admission Test (LSAT). It has a
black-white gap comparable to the New Haven
firefighter`s tests: the median black law school hopeful
would score at only the
12th percentile among whites.
"Admissions to Yale
Law School can be considered the most competitive in the
country based on the school`s 7.3% admit rate alone. The
oft-cited 25th to 75th percentile ranges for admissions run
around 3.77-3.97 (GPA) and 170-177 (LSAT). … On the flip
side, an average of 3 students who had scored below 160 on
the LSAT were admitted per year, although an average of 937
students with comparable scores were rejected each year."
Clearly, Yale Law School can`t choose by
lottery because, well, it`s
Yale Law School, and it`s ever so important that it
have an average LSAT score at least as high as Harvard Law.
Seriously, the careful reader can figure out from Bazelon`s
article why New Haven`s
firemen averaged higher on the controversial tests for
leadership positions: Because, on the whole, they
knew more about how to
did the whites know more?
because they studied harder.
And, to Bazelon`s mind, that`s
just not fair.
Bazelon is much exercised by the racial injustice inherent
in white firefighters knowing more about how to do their
jobs. She says:
"Is this the best
way to choose the leaders of a municipal fire department—the
best memorizers win?"
Worse, the white firemen are unjustly
learning more about fire fighting because they
care more about
fighting fires. Bazelon continues:
one Hispanic quoted anonymously by the
New Haven Independent put it, the test favored `fire
buffs`—guys who read fire-suppression manuals on their
Bazelon, evidently, this is a bad thing.
way, here`s more from the original newspaper article
interviewing two Hispanic firefighters in New Haven:
pair contended that the real issue isn`t about race:
Instead, they argued that the way the test was designed
favored `fire buffs` who have spent their whole lives
reading fire suppression manuals, and studied like maniacs
for the exam. Incidentally, most firefighters matching that
description happened to be white, they said. … Those who
aced the test were nerds who read
fire-fighting books just for fun, said Cordova`s
Group Backs White Firefighters,
by Melissa Bailey, New Haven Independent, February 6, 2009]
Bazelon`s utopia of racial equality, the whites would be
just as apathetic and uninformed about firefighting
techniques as the minorities are.
Moreover, Bazelon laments, some of the white firemen fight
fires for free in their spare time:
firefighters from the suburbs are more likely to have
experience as volunteer firefighters—which gives them a leg
up on skills when they apply for the job …"
white firemen also are advantaged, Bazelon says, because
"… to come from
families in which firefighting is a legacy. … Frank Ricci
has an uncle and two brothers who are firefighters. He
studied fire science at college."
This annoys the Firebirds, the
black firefighter`s association. According to Bazelon,
Firebirds see the family ties of men like Heins and Ricci as
part of a
network of influence that only white firefighters can
tap into. `If you look at the history of the department
there`s a group of folks, their fathers, their grandfathers,
their uncles—they`re all part of this network,` said Gary
Tinney, the head of the Firebirds and one of nine black
lieutenants out of about 50 in the department."
In other words, the white firemen often
grew up in households where
discussions of firefighting techniques were common
around the kitchen table. Sure, this means fewer New
Havenites burn to death—but it`s unjust to more ignorant
I looked up
Bazelon" on Wikipedia (accessed 16.59 ET, June 28
2009) and discovered that while she`s very bright, she`s not
exactly the most self-aware person. When read in light of
her biography, her
Slate article about privileged white firemen becomes an
amusing epitome of unthinking
Wikipedia tells us:
clerking for a federal judge, she pursued a career in
"Before joining Slate, Bazelon was a senior editor of
Legal Affairs. Her
writing has appeared in
The New York Times,
The Washington Post, The Boston Globe, The New Republic
as well as other publications. She has worked as a reporter
San Francisco Bay Area and as a freelance journalist in
has a fellowship at Yale Law School:
"Bazelon is a
Senior Research Scholar in Law and Truman Capote Fellow for
Creative Writing and Law at Yale Law School."
You might think that Bazelon would be
better qualified to offer advice on admissions and promotion
to Yale Law School rather than to the New Haven Fire
Department. By Bazelon`s logic, Yale Law School should hire
by lottery. Perhaps—just to get the ball rolling—she could
publicly offer to give up her position to some randomly
Moreover, this legal writer`s concern
about the advantages Frank Ricci garnered by being related
to firemen seems a little ironic in light of this
is the granddaughter of Judge
David L. Bazelon and cousin of feminist Betty Friedan."
Actually, as her 2005
Betty suggests, she`s more like the second cousin
twice removed of the proto-feminist (and
crypto-communist) authoress of the bestselling
Feminine Mystique. Still, the two were fairly close
despite their age difference.
More strikingly, the legal journalist`s
David Bazelon was the most powerful judge in America not
on the Supreme Court when he served from 1962-1978 as Chief
Judge of the U.S. Court of Appeals for the District of
Needless to say, I`m not implying that
Emily Bazelon`s career as a writer on legal affairs has
depended upon nepotism.
Rather, I`m pointing out that a family
developing and passing on expertise in a particular
field—whether the Riccis in firefighting or the
Bazelons-Friedans in law and punditry—is a
good thing for
society in general, because expertise is always in short
Now tell me: why should we have
for Frank Ricci and another for Emily Bazelon?
Email Emily Bazelon.