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 current civil rights issues are utterly different from the hypotheticals about segregated lunch counters that everybody is moralizing about.
In Lewis v. Chicago, [PDF]the Supreme Court unanimously handed a victory to the Obama Administration and its Solicitor General (and Supreme Court nominee) Elena Kagan, reversing Judge Richard Posner`s 7th Circuit Court of Appeals decision.
In 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 Chicago Sun-Times 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 deficit.”[Supreme 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 “special master” of the Fire Department of New York. The former NYC district attorney`s job: to enforce Garaufis` 2009 Vulcan Society decision cracking down on the organization that gave 343 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 over whether private firms should be allowed to discriminate against minorities.
Instead, the government and courts today are discriminating against whites.
Why 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 to blacks.
Full 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 building.
It was a beautiful day. It seemed a bit of a lark to mill about on cordoned-off Clinton Street, watching the 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 headquarters.
More fire trucks kept pulling up. My boss, being a busy and important person, had parked her car, in the 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.
As the smoke worsened, word filtered out to the street that the fire had evidently started inside the walls of the post office`s basement.
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.
About 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.
But grim-looking firemen were blocking anybody attempting to get back into our building, so I gave up my plan of dashing back inside.
Soon 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?
A 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.
Were we going to stay in business? Were we going to have jobs tomorrow? He didn`t have answers.
We 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.
From 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 Kurt 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.
But through sheer waterpower, the CFD had saved my firm`s adjoining building.
I was still employed.
Now, 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 had mine.
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 fire 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, looking peeved.
The word was that it was difficult to flunk out of the fire academy.
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 fire (and police) hiring.
Chicago likely has far more firemen than it needs in an era when stuff 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 saving lives.
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 Court nominee Elena Kagan was dean of Harvard Law School in 2006, there were about 12 applicants for every place.
And, since the CFD promotes only from within, it needs smart entry-level firemen to have more smart leaders down the road.
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 to 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 1991.
A 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 wins.”
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 FDNY tests that were monomaniacally job-related.
In other words, heads I win, tails you lose.
Of course, the real crimes of both tests weren`t the questions, but the results: whites did better on average.
Daley 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 positions himself as a psychometrician who could come up with tests that minorities would do well upon. As the Chicago Sun-Times 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.
In 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 Chicago, after all.
- 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 Chicago.) So, attempting to validate any test against job performance would just turn into an infinite regression of bias charges.
The second problem: secretly making up a never-before-seen technical video turned out to be hard. Judge Gottschall castigated Outtz`s video as “chaotic.”
But, 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 announced, “after 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 “banded” together 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.
Those 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 hope.
But 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.
The 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.
This 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 remarked: “The race may not always be to the swift nor the victory to the strong, but that`s how you bet.”
Think 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 “banding” are 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 “chaotic” nature 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.
In 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.
Judge Gottschall`s 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 acceptable.
Judge Gottschall`s 2005 opinion was dopey in exactly the same way as Judge Garaufis` 2009 opinion 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.
Judge 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, ever learn 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., cheat.)
Disparate impact, however, does not apply to some institutions. The military 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 take the 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 wanted 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?)
The 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 limitations: “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:
“Congress allowed 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 Ricci firefighter disparate treatment case, it isn`t going to overturn the 1991 act writing disparate impact theory into legislation.
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.
But perhaps Rand Paul will stop floundering around and defend himself with this unanswerable argument.