The interview is definitely worth a read, but I was very disappointed with Ginsburg's explanation of Ricci v DeStefano:
In an earlier post, I criticized Ginsburg's dissent in this case. But Ginsburg again misses the central problem with her argument. As I've explained:Q: Can I bring up the Ricci case, brought by the New Haven firefighters?
JUSTICE GINSBURG: This case had some very hard elements. It was a bit like the Heller case, which involved the Second Amendment. [Last year, the Supreme Court found that Washington gun-control laws that barred handguns in private homes were unconstitutional.] For that, the plaintiff was a nice guy who was a security guard at the Federal Judicial Center, and he had to carry a gun on his job, but he couldn’t carry it home. And in Ricci, you have a dyslexic firefighter. Which is just exactly what you should do as a lawyer. I mean, that’s what I did.
Q: It’s true, it’s a very good strategy. He was a very sympathetic plaintiff. And it was important that the city had already given the test that the white firefighters scored high on and the black firefighters did not.
JUSTICE GINSBURG: Yes. And the city weights the written and oral parts of the test 60-40, and says: That’s what the union wanted, it’s been in the bargaining contracts for 20 years.
I don’t know how many cases there were, Title VII civil rights cases, where unions were responsible. The very first week that I was at Columbia, Jan Goodman, a lawyer in New York, called me and said, Do you know that Columbia has given layoff notices to 25 maids and not a single janitor? Columbia’s defense was the union contract, which was set up so that every maid would have to go before the newly hired janitor would get a layoff notice.
The question is whether the City vacated the results solely on the basis of disparate impact, without a legitimate belief that the test was flawed. Since they refused a technical evaluation of the test -- and in fact argued in district court that evidence of test validity is irrelevant -- it’s pretty clear that at the time they vacated the results, city officials did not have a legitimate belief that the test was flawed. They vacated the results simply because they got the wrong racial outcome. If city officials had looked at the imbalanced racial outcome, and then commissioned a technical review of the exam which found the test to be flawed, they would have been on more solid footing.The City did, of course, have a collective bargaining agreement with the New Haven firefighter's union that specified a 60-40 weighting for promotional exams. This weighting may have been arbitrary. Ginsburg can even argue that it was unfair.
But this is not the reason the results of the exam were vacated.
6 comments:
While I understand what you're saying, I wonder if Ginsburg's point - if her very belief - is that the law dictated, prior to the Supreme Court ruling in the Ricci case, that disparate impact - without the test in question even being proved flawed - is by itself a violation of Title VII of the Civil Rights Act.
I know you don't think much of that argument, and I am unsure of where I fall on the fence in regard to citing disparate impact alone as being reason for action (or inaction). But I do think there is some value in advocating for diversity in places such as police stations and firehouses, especially when the community in question has a large minority population, as New Haven does. In cases like Ricci, I wonder if we should be looking into why minorities typically have lower scores on standardized tests, if we should look at the fact that Ricci could at least hire someone to help him study and see if the African-American firefighters could not make such an effort, and whether or not a test of this type is the proper way to measure whether someone is a good candidate for promotion within a firehouse. In other words, if the circumstances surrounding the test almost ensured disparate impact, even if the test itself was not flawed.
Maybe this is Ginsburg's belief. I really can't speculate. This is certainly not the position that she articulated. And it's not what she wrote in her dissenting opinion.
But, for the sake of argument, let's assume that this is what Ginsburg believes.
I think that this position is intellectually indefensible. It's blatantly circular reasoning. In fact, it's practically the definition of a circular argument. But it's also a bit of a copout, isn't it? If the test was truly flawed, the evidence should bear this out, shouldn't it? If New Haven officials suspected the exam was flawed based on the outcome, why would they refuse a technical evaluation?
I'm actually glad Ginsburg didn't take this track. First, I think this argument may contradict the Bakke decision. Demanding a particular racial outcome is very similar to establishing a racial quota. Second, I think Ginsburg is way too smart to make such a logically unsound argument. I'd much rather believe that -- for whatever reason -- she just missed the mark on this case.
If the test was truly flawed, the evidence should bear this out, shouldn't it? If New Haven officials suspected the exam was flawed based on the outcome, why would they refuse a technical evaluation?
Having never taken a test for promotion within a firehouse (odd, isn't it?), I'm really not sure how a test could be truly flawed. But I do wonder if other factors could make the results flawed, even if the test itself is not. For instance, much has been made of the dyslexic firefighter quitting his second job and hiring a tutor. But what of the firefighters who also needed a leg up, who may have needed a tutor, but either couldn't afford one or couldn't afford to do something like quit a second job?
I readily admit that I don't know the specifics of the financial backgrounds of each individual firefighter who didn't pass the test. I'm more than willing to admit that more than a couple of them could be very much like me, and decided to just fly by the seat of their pants. But at the same time, there is enough evidence of how class and race does impact test results that the disparate impact of the test could be demonstrating a larger socio-economic truth, and that promoting those who are able to circumvent their own circumstances - by being able to take more time to study, pay people to help them study, etc. - then reinforces those socio-economic factors that make things like even unflawed tests produced biased results.
Here's the problem with circular arguments in my view: in an actual logic or ethics class, circular arguments are a bad. But in the Real World, life often seems to be a series of catch-22s, and things like the Ricci case seem to be an example of that - and not solely because New Haven feared being sued by the minority firefighters if they validated the tests only to be sued by the white firefighters for not.
I'm a little confused. Can I ask you some (admittedly leading) questions?
First, do you think it would be fair for a firefighter of lesser means to sue the City on the grounds that other firefighters may have had more resources (time, money, etc.) available to them to prepare for the exam?
Second, do you think the City should have to account for this for this kind of socio-economic discrepancy -- or bear legal responsibility if it does not?
Third, if a disadvantaged student who achieved poor SAT scores sued on the grounds that he could not afford a Princeton Review course like some of his wealthier classmates, what do you think would be the outcome of this suit? Assume that the student never questioned the validity of the test.
First, do you think it would be fair for a firefighter of lesser means to sue the City on the grounds that other firefighters may have had more resources (time, money, etc.) available to them to prepare for the exam?
I think the reason we have Affirmative Action policies in this country is because we recognize that not only are minorities and women more likely to be discriminated against when it comes to applying for jobs/college, because we recognize that history of discrimination has adversely affected the social and economic positions of women and minorites (mostly minorities, because women could marry men), and because the different perspectives of women and minorities have often been ignored in favor of privileging the opinions and perspectives of those in power, who have historically tended to be (but by no means exclusively) white men. Affirmative Action, at least as I understand it, is designed to combat the first two while promoting the third, which is why someone like Sonia Sotomayor, who may have had lower test scores than others who applied to Princeton, was accepted.
Because of that, I don't necessarily know if merely having lesser means is enough to qualify for suing. But if Affirmative Action is meant to do each of the three things I think it is meant to, then an African-American who has a less privileged background may have a reason to sue.
Second, do you think the City should have to account for this for this kind of socio-economic discrepancy -- or bear legal responsibility if it does not?
I don't know. I think that to create a true meritocracy from this point forward won't really work, due to the fact that those who were privileged by the previous nonmeritocratic system still carry the effects of that privilege, through connections or money or what have you. I don't know how to fix the problem, but I do see it as a problem. I also think that perhaps other factors should be taken into account, especially in a city like New Haven where there are more minorities than whites. I also think that something like this could easily be fixed by having a review/tutorial be given within the firehouse itself.
Third, if a disadvantaged student who achieved poor SAT scores sued on the grounds that he could not afford a Princeton Review course like some of his wealthier classmates, what do you think would be the outcome of this suit? Assume that the student never questioned the validity of the test.
I think that unless he came before a group of communist judges, his suit would probably be thrown out. And I don't know where I fall on the issue of whether or not it *should*. I'm not against wealth or accumulated wealth. But I do think that we like to think there is more upper mobility than there truly is, because of things like the correlation between wealth and test scores. Sure, the wealthy really could be more intelligent than those on the bottom of the economic totem pole. But it is much more likely that the rich kid was taught how to take tests and was prepared for things like the rigors of college. Again, I don't know how to fix it, and I wouldn't want to take that away from the rich kids of the world. But I do wonder how that sort of thing does affect the execution of the American Dream.
I think I might still be missing your point.
City officials didn't vacate the results because they had any evidence that the test -- or any of the circumstances surrounding the test -- were flawed. Rather, they vacated the results because they thought that those results proved there was some kind of flaw, which may have opened them up to lawsuit.
(I think this kind of circular reasoning is just as much a problem in the real world as it is in the ivory tower.)
I'd feel a lot more comfortable if New Haven officials actually looked into any of this, and tried to produce evidence that there was some kind of inequity among those firefighters eligible to take the exam that needed to be addressed.
I don't know how I feel about affirmative action, but I think there is a difference between instituting an affirmative action program (perhaps in tandem with a performance exam) and vacating the results of a performance exam after the fact, without offering some sort of evidence-based justification for your actions.
Again, this isn't really what Ginsburg argued. She said that the test itself was flawed. From what I remember, she also cited the history of discrimination in union jobs. But I don't think she ever argued that affirmative action should be required under Title VII -- or that disadvantaged workers should be allowed to sue on the grounds that affirmative action was absent.
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