This is from Walter Olson at the Point Of Law forum
Second Circuit: race-conscious discarding of test results OKThe city of New Haven, Connecticut, went to great lengths to devise a firefighter test that would not have "disparate impact" on minority applicants, but when the results of the 2003 test-taking came in, applying the city`s "Rule of Three" which required selection from among the highest scorers, "no blacks and at most two Hispanics would have been eligible for promotion to captain and no blacks or Hispanics would have been eligible to make lieutenant". So the city civil service board vacated the results, frankly acknowledging that it was in search of better minority hiring numbers. White applicants sued and were thrown out of court by District Judge Janet Bond Atherton, who was upheld by a Second Circuit panel. Now a sharply split full circuit has refused en banc rehearing, with Judge Cabranes for the dissenters formulating the core question: "May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?" (New York Law Journal).
Of course, there`s no reason to expect any such test to have racially neutral results—if it did, it wouldn`t be a good test.
As I`ve said before
"The message of Griggs and "disparate impact" theory: if minorities fail tests at a higher rate than whites, itâ€™s the test thatâ€™s wrong."