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 Sotomayor's notorious decision in Ricci v. DeStefano. Sotomayor permitted New Haven to junk the results of its fire department promotional exams because too many whites had done well on them.

Last week, Slate ran a 5000 word article about the New Haven Fire Department, The 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 less 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 "Four-Fifths 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.

In 2006, 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 government picked "randomly" from the top 85 percent—the crème de la crème of the Disparate Impact Age.

Why did Chicago have to go so low?

You can use Microsoft Excel's "Normdist" function to figure out how low you must set the bar when drawing from "normally distributed" populations to allow blacks to pass a test at the EEOC-mandated rate of Four-Fifths as much as whites.

Assume 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.)

If you 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.

What 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?

Answer: 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 would the 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 race.

Bazelon asks:

"Why Did New Haven's White Firefighters Test Better Than Blacks and Hispanics?"

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.

But the Yale Law School most definitely does not use a lottery to randomly choose among all applicants whose LSATs are high enough for them to become lawyers. Top-Law-Schools.com reports:

"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.

But the New Haven Fire Department should use a lottery because rescuing people from burning buildings is for blue-collar lunkheads. How much do you really have to know about saving lives anyway?

Seriously, the careful reader can figure out from Bazelon's article why New Haven's white firemen averaged higher on the controversial tests for leadership positions: Because, on the whole, they knew more about how to fight fires.

And why did the whites know more?

In part, 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:

"As one Hispanic quoted anonymously by the New Haven Independent put it, the test favored 'fire buffs'—guys who read fire-suppression manuals on their downtime …"

To Bazelon, evidently, this is a bad thing.

By the way, here's more from the original newspaper article interviewing two Hispanic firefighters in New Haven:

"The 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 cohort." [Latino Group Backs White Firefighters, by Melissa Bailey, New Haven Independent, February 6, 2009]

In 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:

"Meanwhile, the [predominantly white] 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 …"

The white firemen also are advantaged, Bazelon says, because they tend

"… 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,

"The 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 firefighters.

I looked up "Emily 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 Gown v. Town prejudice.

Wikipedia tells us:

"[Bazelon] graduated from Yale College in 1993 and from Yale Law School in 2000."

After clerking for a federal judge, she pursued a career in law-related journalism:

"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 in the San Francisco Bay Area and as a freelance journalist in Israel."

Now, she 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 chosen person?

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 Wikipedia line:

"She is the granddaughter of Judge David L. Bazelon and cousin of feminist Betty Friedan."

Actually, as her 2005 Slate article Shopping with 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 grandfather 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 Columbia.

Indeed, considering his close relationship with the Svengali of the Warren Court, William J. Brennan, quite possibly Bazelon was more powerful than several Supreme Court Justices.

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 supply.

Now tell me: why should we have one law for Frank Ricci and another for Emily Bazelon?

Email Emily Bazelon.

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