Pundits obsessed last week over whether
Senate candidate Rand Paul`s
skepticism about the 1964 Civil Rights Act would be
cataclysmic or merely awful—as if the U.S. were
to suddenly fall through a time warp and be flung back
to the Jim Crow Era.
Meanwhile, last Monday, May 24, 2010, the
Supreme Court quietly delivered a ruling demonstrating that
rights issues are utterly different from the
hypotheticals about segregated lunch counters that everybody
is moralizing about.
Lewis v. Chicago, [PDF]the
Supreme Court unanimously handed a victory to the Obama
Administration and its Solicitor General (and Supreme Court
Elena Kagan, reversing Judge Richard Posner`s 7th
Circuit Court of Appeals decision.
effect, the Supreme Court reinstated a huge payout to blacks
who didn`t score well on Mayor Daley`s 1995 firefighter
hiring test. This means, as the
reported in 2009, that Chicago
"taxpayers could be back on the hook for $100 million-plus at the worst
possible time. The city is already facing a $520 million
Court to take `95 Chicago firefighters exam case,
September 30, 2009
Similarly, last week in New York City,
Judge Nicholas G. Garaufis appointed the
nonagenarian Robert Morgenthau as
of the Fire Department of New York. The former
district attorney`s job: to enforce Garaufis` 2009
Society decision cracking down on the organization
lives on 9/11. Their crime—using a civil service exam that
blacks and Hispanics averaged worse on than whites.
I hope I can be forgiven for this
unfashionable interest I take in the 21st Century, when
everybody else is wrapped up in thinking about the mid-20th
Century. I guess I`m just a fuddy-duddy for thinking about
Chicago and New York today rather than
fretting over Selma a half century ago.
George Orwell wrote in
1984 that he "who
controls the past
controls the future; who controls the present
controls the past".
My uncouth suspicion: We hear so much more today about
discrimination law in 1960 than in 2010 not because
contemporary elites are into antiquarianism for the sake of
antiquarianism—but because it has become a tool for
maintaining and extending power.
As these timely examples show, current
reality is the completely reverse of the Rand Paul brouhaha
firms should be allowed to discriminate against
Instead, the government and courts today
the Chicago decision? Well, it`s kind of hard to make this
sound plausible … but in 1995 Mayor Daley, hoping to
diversify the Chicago Fire Department, used a hiring test
designed by a black psychologist in order to hire more
blacks. But according to district judge Joan B. Gottschall`s
2005 decision in favor of the 6000 black applicants who
scored poorly, the black psychologist`s test wasn`t good
enough, so therefore a huge amount of money should be paid
disclosure: I have a personal reason for my eccentricity in
thinking more about the future of the Chicago Fire
Department than about the distant past of, say, the
Birmingham Police Department.
On the morning of June 15, 1985, while
Barack Obama was in the process of
moving to Chicago to become a racial activist, I was
working at a marketing research firm headquartered just west
of Chicago`s Loop. While building a
Lotus 1-2-3 spreadsheet on my state-of-the-art 8
megahertz IBM PC AT, I smelt smoke. Other employees began to
stir uneasily from their cubicles. The office manager came
on the intercom and diffidently instructed us to exit the
It was a beautiful day. It seemed a bit of
a lark to mill about on cordoned-off Clinton Street,
Chicago Fire Department confront wisps of smoke coming
from the four-story post office building next door, which
shared its south wall with our six story corporate
More fire trucks kept pulling up. My boss,
being a busy and important person, had parked her car, in
immemorial Chicago style, in front of a fire hydrant.
Firemen smashed her windows and threaded their hoses
directly through the interior. That was … interesting. The
firemen seemed to be taking whatever was happening in the
post office more seriously than I had been taking it.
the smoke worsened, word filtered out to the street that the
fire had evidently started inside the walls of the post
Firemen staggered back out onto the street, saying that the
flames had spread within all the walls to the top floor. The
building was doomed. Their only option was to pour enough
water on the fire to keep the heat from igniting the
adjoining buildings—such as my company`s headquarters.
then, I started to realize that maybe I should have lugged
my PC AT out with me. All my work was stored on its massive
20-megabyte hard disk. My coworkers` didn`t use personal
computers back then, but, I noticed, nobody had brought
their filing cabinets down with them either.
grim-looking firemen were blocking anybody attempting to get
back into our building, so I gave up my plan of dashing back
after, I began asking my co-workers what happens to our
company if the fire spreads to our building through the
shared wall. If our office burns down, would Procter &
Gamble, our biggest client, not mind if we don`t fulfill our
contracts with them because all our work went up in smoke?
higher-up told me our firm had $10 million in business
interruption insurance. Would that be enough? I asked. He
bit his lip and looked thoughtful.
we going to stay in business? Were we going to have jobs
tomorrow? He didn`t have answers.
learned that the CFD had upgraded the event to a five-alarm
fire. Eventually, 60 fire trucks arrived on the scene,
completely filling Clinton Street. Us gawkers were getting
in the way of the professionals, so we were sent home.
the roof of my apartment three miles to the north, I could
look downtown and see a dark plume of smoke rising thousands
of feet into the air. Was some of that smoke my computer and
the floppy disks I had carefully backed it up on?
I figured I was probably out of a job and
would be broke for awhile. So, I used the unexpected day off
to drive to
Cog Hill and play golf while I could still afford it.
Around 9pm, I swung by the Loop to see if I still had a job.
The skeleton of the Haymarket post office
looked like something from a
Vonnegut nightmare about his February 1945 POW days in
Dresden. The hulk was glowing red and billowing smoke as
dozens of firemen continued to pour jets of water on it
through the night.
through sheer waterpower, the CFD had saved my firm`s
the CFD didn`t do anything particularly heroic. No fireman
raced through rising flames to save my PC AT.
Nonetheless, they did their jobs well enough that I still
Every so often after that, I`d hear boot
camp-style chanting outside my downtown office window. I`d
look out and there would be a few dozen
academy cadets in gray sweatsuits jogging by, followed a
couple of minutes later by one or two fat guys huffing
along. Finally, a sweaty fat lady cadet would stroll by,
word was that it was difficult to flunk out of the fire
Getting hired was the hard part.
After that, I couldn`t help but pay
attention to news reports on how Chicago firemen were hired
and promoted. It was difficult not to when you lived in
Chicago, since there were never ending controversies over
Chicago likely has far more firemen than
it needs in an era when
isn`t as likely to catch fire as it used to. This
abundance is hardly surprising in a town that burned to the
ground in 1871. And it comes in handy to be able to send 60
rigs to a five-alarm fire.
But even with a lot of firefighting jobs
in Chicago, there were always vastly more people who want
them. The pay was decent, the benefits good, and people
respected you. Many guys had wanted to be a fireman since
they were three years old. And some men—derided by
liberals as "fire
buffs" because they tend to be white—find
firefighting not just a job, not just an adventure, but a
vocation. In their spare time, they read firefighting books
and volunteer at small town fire departments. They like
So, being a Chicago fireman is kind of
like being a
Harvard student: there are far more applicants than
openings. In 1995 in Chicago, there were about 40
test-takers for each job opening. In contrast, when Supreme
Elena Kagan was dean of Harvard Law School in 2006,
there were about 12 applicants for every place.
since the CFD promotes only from within, it needs smart
entry-level firemen to have more smart leaders down the
In the mid-1990s, Mayor Richard M. Daley
decided to do something about all the racial conflicts over
fire department hiring. Probably Hizzoner would have liked
have simply hired good loyal Daley Democrats. But there
were all these pesky civil service rules mandating
blind-graded tests. The point of a civil service exam is to
test what you know, not who you know.
On the other hand—there is the 1964 Civil
Rights Act! In 1971, the
Supreme Court announced that in discrimination lawsuits
the legal burden of proof would be on the employer for
any hiring mechanism on which whites outperform blacks
(i.e., most objective measures). Congress codified this in
reader explains how disparate impact law works:
"I think the courts
are interpreting the Civil Rights Act of 1991 faithfully
when they rule in favor of quotas (in effect) in the fire
department cases. Basically, the law is set up so that it`s
almost impossible for an employer to get away with an exam
that has a disparate impact. The defendant has to show that
its test is perfect; the plaintiff only has to show that
it`s imperfect. Unsurprisingly, the plaintiff almost always
Any excuse can serve to throw out a test.
For example, in 1972
Judge Edward Weinfeld junked the New York fireman`s
hiring exam, complaining that it featured general vocabulary
and math questions that weren`t specifically job-related. In
contrast, in 2009 Judge Garaufis tossed the 1999 and 2002
tests that were monomaniacally job-related.
other words, heads I win, tails you lose.
course, the real crimes of both tests weren`t the questions,
but the results: whites did better on average.
set out to create an objective, relevant test that would
also get rid of the racial gap. He would pay big money for
cutting edge civil service exams that would not discriminate
against blacks and Hispanics.
Daley gave a large contract to a black consultant named Dr.
James Outtz, [Pictured right] who
himself as a psychometrician who could come up with tests
that minorities would do well upon. As the
reported in 2009,
"The `95 exam was drafted by an African American with an eye
toward diversifying the Fire Department."
Outtz theorized that blacks were
unfairly handicapped by tests that require reading, so he
sold the Daley administration on a test where only 15
percent of the score would come from a written exam on
firefighting techniques, while 85 percent was based on
questions following a video presentation on a fire-related
technical subject. The city handed out
35,000 copies of Outtz`s study materials to those who
registered to take the test.
Turnout was huge: 26,000 people took Outtz`s test for
approximately 600 openings.
retrospect, there were some problems with the consultant`s
novel test. The first was that he couldn`t validate his new
test by correlating how well current firefighters did on it
versus their job performance because:
The city figured, not unreasonably,
that current firemen would leak the test questions to
their relatives, friends, and neighbors. It`s
It was hopeless to try to get black
firemen to agree that evaluations by their white
supervisors were unbiased. (Would you trust your fire
captain to be unbiased? Remember, it`s
attempting to validate any test against job performance
would just turn into an infinite regression of bias
The second problem: secretly making up a
never-before-seen technical video turned out to be hard.
Judge Gottschall castigated Outtz`s video as
in the end, none of this mattered much. From the
all-important racial perspective—which is solely what the
subsequent decade and a half of lawyering has been about—the
results came out pretty much the same as all other fire
department tests, and almost all tests with a significant
cognitive performance component: whites outscored blacks.
This naturally dismayed Mayor Daley. On
January 26, 1996, the Democratic mayor
all our efforts to improve diversity [including racial],
these test results are disappointing."
So the city decided that the top 1782
performers, who scored 89 or higher, would be
and, to limit disparate impact, candidates drawn randomly
from among these top scorers. They would go on to the fire
academy if they passed a physical exam and background check.
who scored below 65 (the 16th percentile) got a notice
dismissing them. The many thousands who scored between 65
and 88 (the 16th and 92nd percentiles) were told that they
probably wouldn`t be admitted, but that they had a slight
in 1997, the black firemen`s union sued in the name of the
6000 black applicants who scored between 65 and 89 on the
grounds that taking the top scorers on the test had a
disparate impact. Among white test-takers, 12.6 percent
scored 89 or higher versus 2.2 percent of blacks. That`s a
racial difference in standard deviations of 0.87.
no-hope cutoff was set below 65, one standard deviation
below the mean. Among whites, a full 93.5 percent scored 65
or better versus 72.3 percent of blacks: a difference of
0.92 standard deviations.
In other words, after all the effort to
eliminate disparate impact, this test simply replicated the
venerable finding of approximately a one standard
deviation difference between whites and blacks on any
measurement of cognition: what statistician
La Griffe du
Lion calls the "Fundamental
Constant of Sociology."
Obviously, the best method for getting the best firefighters
from the information available (and remember, limited
information is the essence of civil service testing) is to
call up applicants for the more expensive kind of exams,
such as physical fitness, background checks, and fire
academy, in rank order of test scores.
is not to say that somebody who scored 98 will necessarily
have a better career in firefighting than somebody who
scores a 97—just that, as sportswriter Damon Runyon
race may not always be to the swift nor the victory to the
strong, but that`s how you bet."
about it. Try to come up with a method that will get better
firefighters than rank-ordering. You can`t.
All the pseudo-scientific rationalizations
the legal community expounds for
driven by combinations of innumeracy and racial bias.
In 2005, finally, Judge Gottschall, a
graduate of Stanford Law (LSAT range
168-172), issued her
ruling: total victory for the black plaintiffs. Chicago
should just pick randomly among anybody scoring at the 16th
percentile on up.
She offered multiple
reasons for junking the test: the
of the black consultant`s video, her assumption that anybody
who scores at the 7th percentile of the white distribution
of scores is good enough for the job, and the fact that in
the Horan case brought by white firefighters passed
over for promotion, the city had defended its use of overt
racial quotas for promotions: in effect, any compromise on
one case will be used against you in the next.
2006, Chicago finally gave another firefighter`s hiring
test. To avoid disparate impact, it made the test so easy
that 96 percent of whites passed it. Then it chose randomly
from all who passed.
opinion would be the kind of thing people would laugh
about if you were allowed to have a sense of humor about
things like this. However, judges never have to worry about,
say, Jon Stewart making fun of them on TV if they say stupid
things about race as long as what they say is socially
Judge Gottschall`s 2005 opinion was dopey
in exactly the same way as Judge Garaufis` 2009
in the New York fire hire test lawsuit brought by
Alberto Gonzales when he was George W. Bush`s attorney
general: obtuse, ignorant, blinkered, and elitist.
Gottschall condemned Chicago as racially discriminatory for
not hiring randomly from all those who scored 65 or higher.
That`s the 7th percentile of white guys who`d like to be a
fireman, which is scary bad.
The essence of firefighter disparate
impact law is that judges never,
anything from all the other firefighter disparate impact
cases. Each kind of test gives the same result in racial
terms, but that is never admitted as evidence for anything,
or even admitted at all. (The only way that`s been found to
close the racial gap is to get rid of blind-grading: i.e.,
Disparate impact, however, does
not apply to some
takes virtually no enlistees who score below the 31st
percentile on its AFQT IQ test.
Or, consider that when she was dean of
Harvard Law School, Elena Kagan required all applicants to
Law School Admissions Test even though the LSAT has
ferocious disparate impact. The average black score on the
LSAT in 2005-2006 was 143, which would fall at only the 12th
percentile of the white range. Dean Kagan`s 2006 freshman
class had scores ranging from 169 out of 180 at the 25th
percentile to 175 at the 75th percentile.
Now, Kagan didn`t
need to demand such stratospheric test scores from applicants. She
could have admitted Harvard Law students random from the top
five-sixths of applicants. You don`t need to be that smart
to pass Harvard Law or the bar exam. She just
exceptionally bright students.
But it`s okay for Harvard Law School to
use the LSAT because
it`s Harvard Law—not a bunch of moron firemen who only
have to know to point the open end of the hose at the
flames, right? Just ask Dean Kagan!
(In fact, that
would be a fun
question to ask her. Senator Sessions?)
city appealed to the federal Seventh Circuit Court of
Appeals on the technical grounds that the plaintiffs hadn`t
filed suit within the 300-day statute of limitations, which
should have started running when the test results were
mailed out in early 1996.
Writing for a 3-0
panel of appeals court judges in downtown Chicago, Richard
Posner ruled in favor of the city on the statute of
"Why any of this should change the date on which the statute
of limitations begins to run escapes us …"
Last week, however, Judge Antonin Scalia,
writing for a 9-0 Supreme Court, reversed Posner on the
statute of limitations issue, opening the door for a huge
payout. Scalia concluded:
claims to be brought against an employer who uses a practice
that causes disparate impact, whatever the employer`s
motives and whether or not he has employed the same practice
in the past. If that effect was unintended, it is a problem
for Congress, not one that federal courts can fix."
Scalia appears to be sending a message to
Republicans that, while the Supreme Court five-member
majority will relieve flagrant injustices, such as in 2009`s
firefighter disparate treatment case, it isn`t going to
overturn the 1991 act writing disparate impact theory into
Republican politicians would have to do that themselves.
Needless to say, I haven`t seen any evidence that Republican
politicians have gotten Scalia`s message.
perhaps Rand Paul will stop floundering around and defend
himself with this unanswerable argument.