Race and Merit Return to the Firehouse

The question of hiring practices in fire departments is not new.  But it sure seems troubling.  This is the context that gave rise to the Ricci case and the decision by the city of New Haven to throw away an employment test that would have had a racially disparate impact.  The U.S. Supreme Court, in a 5-4 opinion, strongly disapproved of this action.

The city of New York is no stranger to this debate.  Currently, the city's fire department is in the middle of an effort to diversify that is unprecedented in the history of the department.  According to a recent report by the New York Times, "[i]n 18 months, officials say, recruiters have sought black candidates at more than 6,100 events at high schools, colleges, shopping malls, boxing gyms, softball games and military picnics, all but begging them to apply for the next entrance test, in January, by the Sept. 15 deadline."

This is remarkable in many ways. Commendable, to be sure, and also necessary; but this is not what caught my attention.

After one of his many recruiting speeches across the city, the fire commissioner explained his stance on the issue. 

After his speech, he sat near the church’s basketball court, where he avowed, remarkably, that while he had obviously always known the department was predominantly white, he never understood, until the suit was filed, that others viewed this whiteness through a lens of racial bias." 

“It never dawned on anyone,” he said. “We never looked at white or black. We looked at good firefighter or not so good. Me? I made it in this department by what I did, not who I was. But then you suddenly realize: people may actually think we’re discriminatory.” 

Looking almost hurt, he paused and said, “That’s why I’m here today.”

This is a remarkable passage.  Hurt?  Dumbfounded, as in, how could anyone think we discriminate? This is an old refrain: I made it far in _________ (fill in the blank with your profession of choice), and surely, if I made it, anybody can.

I suspect the fire commissioner is not alone. But such is the beauty of white privilege. Imagine the amount of guilt and unnecessary angst if he were to give any thought to why he rose through the ranks as he did.  It is much easier to think of his achievements as stemming from individual hard work and determination than as a measure of one's racial standing in the world.  

If only life were so simple.

The same day I read this account of the diversity struggle in NYC, I also read Nate Silver's insightful account of the difficulty inherent to differentiating, from the many available teams, which two teams deserve to play for the BCS national championship in football.  This piece is a remarkable read. Silver asks the following question: are the people who participate in the polls used to determine who deserves to play in the championship game "judging teams based solely on their performance? Or do biases and preordained notions about the teams’ quality enter into the equation?"  Unsurprisingly, Silver concludes that "[t]he evidence points toward the latter. A team’s preseason ranking has a modest but statistically significant effect on its B.C.S. ranking at the end of the season, even after controlling for its quality of play as determined by computer systems."

It gets better.  According to Silver, "[t]here is also evidence that teams with wider fan bases are more likely to be treated favorably by B.C.S. voters — meaning that the surveys are a popularity contest, at least in part. A marquee name like Notre Dame is likely to finish a couple of ranks higher than, for instance, Mississippi State or Northwestern given equivalent performance on the field."  This is another way of saying that teams are not treated equally, and that "merit" is more of an aspiration than a political reality.

So much for the objectivity of computers and fancy formulas.

Next time your boss brings out fancy tests or formulas to prove to you why you are not getting a raise or a promotion, think twice about he's telling you.  (It is particularly amusing when a dean pulls out a sheet of paper where he ranks the faculty according to a formula that is only understood by whomever designed it, as if to prove objectively why you are not getting what other people are).  These are probably the same fancy tests and formulas that determined that he should have a raise or a promotion.  It is likely that he became your boss thanks in great part to these same metrics.  That fact alone makes them true.

Maybe this is not so remarkable after all.

What Bryce Harper Teaches Us About Promotions, Hiring and Admissions

Bryce Harper is the talk of Major League Baseball. He is the next can’t miss prospect, a 17 year old kid on a direct path to stardom. He graced the cover of Sports Illustrated last year, and today he became the first pick in baseball’s amateur draft.

The hype is extraordinary: to some, "He might be the greatest amateur player of all time," and to others, "He's the best position player I've seen come through here," or “the LeBron James of baseball.” He has been called “a prodigy” and “the chosen one.” According to Sports Illustrated’s Tom Verducci:

So good and so young is Bryce Harper, however, that he explodes baseball convention. He has hit the longest home run in the history of Tropicana Field, home of the Tampa Bay Rays, and he did so in January, at age 16, with a blast that would have flown farther than the measured 502 feet had it not smashed off the back wall of the dome. Still only 16, Harper stands 6'3", weighs 205 pounds, has faster bat speed than Mark McGwire in his prime and runs so fast that he scored on wild pitches six times this season from second base. As a catcher he picks off runners from his knees, and when he pitches, he throws a fastball that has been clocked at 96 mph. He also does volunteer work, holds down a 3.5 grade point average and attends religious education classes nearly every morning before school.

I can’t help but wonder: does he leap tall buildings in a single bound?

In thinking about Bryce Harper, I also can’t help but think of college admission debates, or firefighter promotion tests, or law school hiring. These things are never sure things – this is true whether we are talking about promotions, admissions, or hiring – and to be behave as if they are is simply foolish.

Merit is in the eye of the beholder.

Making Sense of SCOTUS, the Latest Firefighters Case, and Race

On Monday, the U.S. Supreme Court decided Lewis v. Chicago, an employment discrimination case.  The facts were oddly familiar.  In January 1996, the City of Chicago offered a written exam to applicants for its firefighter positions.  Anyone scoring between 89 and 100 on the test were placed on the “well qualified” list, and the city would fill its open positions by selecting candidates randomly from this list.  Anyone between 65 and 89 were deemed “qualified” yet unlikely to get a call from the city.  Anyone under 65 failed the test.

Long story short: As the city began to select from the “well qualified” list, African American applicants from the “qualified” list argued that the selection process had a disparate impact in violation of Title VII.  The district court agreed and ruled in favor of the plaintiffs.  The Seventh Circuit reversed, on the ground that the plaintiffs were required to file a charge with the EEOC within 300 days from the time the discriminatory act took place yet failed to do so. According to the panel, the discriminatory act was the sorting of all applicants into the three pools on the basis of their test scores.  In the words of Judge Posner, writing for the three-judge panel, “[t]hat discrimination was complete when the tests were scored and, especially in light of the mayor’s public comment about them, was discovered when the applicants learned the results.”

This is right out of Groundhog Day.

Anyone familiar with the recent Ricci v. Stefano or Ledbetter v. Goodyear Tire & Rubber could take an educated guess about the outcome in Lewis.  You would only need to know two things.  First, the justices are strategic political actors who seek, whenever possible, to further their own policy objectives.  And second, the conservative wing of the Court is neither receptive to broad and expansive readings of employment discrimination law, nor is it welcoming to claims brought by plaintiffs of color.  These two facts are clearly on display in Ricci and Ledbetter.  This would mean that in Lewis, the Supreme Court, in a 5-4 decision, would uphold the lower court decision and rule the claims by the black plaintiffs as untimely.

And yet, the Court did exactly the opposite, ruling unanimously for the black plaintiffs.  How to explain it?  How to explain such an opinion authored by Justice Scalia and joined by Justices Thomas, Kennedy, Alito and the Chief Justice (and the rest of the justices, of course)?

I don’t have a definitive answer.  But I have some ideas.

On Judging, Race and the Game of Basketball

I was at a girls high school basketball game last week when the most amazing thing happened. It was a game between my local high school, middle class and predominantly white, and a high school from Indianapolis, which happens to be predominantly black. The teams reflected their schools' student bodies and were mirror images of one another. The local team only had two black players, and the visiting Indianapolis team had only one white player. Their respective fans at the game were mirror images as well.

This game helped me understand many things, most notably the Ricci firefighters case, the Supreme Court's continued attacks on the use of race in public life, and even the recent Citizens United case.

However indirectly, this game is the reason the Voting Rights Act will not be among us much longer.

The game began uneventfully and remained so for some time. Over the span of a few short minutes, however, the complexion of the game changed and the Indianapolis team surged to a double-digit lead. One player in particular was clearly the best player on the floor. She could do anything she wanted. The game seemed over, and this was only the second quarter.

Then the tide changed, and it was then when things got curious.

Things got chippy, play tightened, and the local team began to chip away at the lead. What had been a 15 point lead became 9, then 5, and towards the end of the fourth quarter the game was close once again. I could give away one punch line, as it appeared in the local paper the next day. To paraphrase: the local girls high school team played with guts and great courage, hung in there, and ultimately won a hard-fought battle.

Or I could give you an alternative reality, the one deeply felt by the players and fans from the visiting team.

Go back to that time in the game when the visiting team held a double-digit lead. From that moment forward, there is no question that the complexion of the game changed. I wish I could say that one team began playing harder than the other. What I saw, and what fans from the visiting team saw as well, was a number of calls by the referees go against the Indianapolis team. Not just a few calls, mind you, but just about every close call. Whether a foul, a walking violation, or who knocked the ball out of bounds, the calls went largely to the home team.

I happened to be sitting close to a man who had traveled all the way from Indianapolis to watch the game. He was neither happy nor afraid to show it. He was clearly frustrated, at one point yelling "let us compete;" at another, "you're not letting us play!" But he was not alone. The coaches soon showed their frustration as well, and so did the players. The star player never stopped playing, mind you, but by the end of the game, you could see that her demeanor changed. She was still smiling, but it was not a confident, assertive smile. By then, it was more of an incredulous smile. She knew she was beat and there was nothing she could do to stop it. As for the fan, the last straw came with 20 seconds left, when the refs called a phantom traveling violation on the Indianapolis team. The man got up from the bleachers, mumbled some choice words, and stormed off.

This game offered alternative realities. From the same set of facts, one side rejoiced in their hard-fought victory, the other left angry and feeling cheated. The fans and players saw and experienced completely different games. If asked, both sides would argue the other side is crazy for feeling the way they did.

In the end, there was only one reality that mattered: the referees'. They made the calls, disputed or not, and there was no way to appeal them.

Now, I don't think they were biased, at least not overtly. They did happen to be white, all three of them, and most of their calls did happen to go against the Indianapolis team. But by most objective markers, something was awry (at one point, for example, the foul differential was 7 fouls to 1). One side felt it deeply; the other was indifferent, maybe incredulous.

I could not help but think of Chief Justice Roberts' balls and strikes analogy during his confirmation hearings (he would only call cases as he saw them, no differently than calling balls and strikes). If only judging were that simple.

More troubling still, what to do when our realities differ as markedly as they sometimes do, and often along racial lines?

Ricci

The United States Supreme Court decided against the City of New Haven today in Ricci v. DeStefano. In a 5-4 decision, the five conservatives arrayed against the four liberals, the Court held that City violated Title VII when the City scrapped a promotion test after the results revealed that firefighters of color did much worse on the test than the white firefighters.I previously blogged about Ricci here.   Justice Kennedy wrote the opinion for the majority and given that this outcome was expected, Kennedy's decision was not as bad as it could have been. For example, the majority avoided the constitutional question, though Scalia warned that that day of reckoning will come. But the most interesting opinion was in fact that of Justice Ginsburg in dissent. 

Ginsburg asks the relevant question in Ricci: why were the test scores of the firefighters of color so much lower than that of white firefighters. This is the question that should be our obsession. If the modern-day version of what passes for civil rights organizations were worth their salt, they would provide us with concrete answers to those questions as well as solutions.

Tricky Ricci

I've been thinking a bit about Ricci v. DeStefano, the New Haven firefighters case currently before the Supreme Court and in the news because Supreme Court nominee Sonia Sotomayor was on the Second Circuit appellate panel that affirmed the lower court's decision. Conservatives have used Ricci as the poster child for the argument that affirmative action has gone too far and is outmoded, especially with a black president. They have also used it to try to undermine the nomination of Judge Sotomayor. With some exceptions, left of center commentators have not had much to say about the case, the facts of which appear hard to defend. But upon closer inspection, progressives should have more to say about Ricci than they've said so far.

First a quick recap of the facts for the uninitiated. If you wanted to be promoted to captain or lieutenant in the City of New Haven you had a take a written and oral test (the written test counted more than the oral test). The pass rate for the white test takers was double that of the colored test takers and the top scorers were almost all white. The City refused to certify the test, which meant that no one got promoted. Seventeen white firefighters and one Latino claiming racial discrimination. The City defended on the grounds that certifying the tests would subject them to a lawsuit from and liability to firefighters of color.

Ricci is interesting for a number of reasons. First, the case has a very compelling plaintiff, Frank Ricci. Ricci is dyslexic. He took time off from work, paid someone to read to him, and did extremely well on the exam. Straight out of central casting.

Second, the case seems grossly unfair. After Ricci and his fellow plaintiffs studied for the test and did well, the City looked at the racial composition of those who passed the test and then decided that it would scrap the test and not certify it. As Professor Fuentes-Rohwer would say, Uuugly!

Third, neither the district court nor the Court of Appeals gave this case the full treatment that it deserves given the very difficult legal issues that it presents. The Court of Appeals dismissed the case in favor of the City on summary judgment. (For the non-lawyer readers, this means that court believed that there were no issues for a jury because the law entitled the City to prevail on the facts.). The Court of Appeals panel first affirmed the judgment of the district court in a summary opinion. The full Court of Appeals then voted on whether to hear the case en banc (all the active judges on the court would participate as opposed to simply a panel of three). The petition for en banc review was denied (the appellate panel's decision would stand) and prompted a sharp dissent by Judge Jose Cabranes.

Fourth, there is the whole Sotomayor connection and not much more needs to be said about that.
As a point of departure, I'm in rough agreement with parts of Judge Jose Cabranes' opinion dissenting from denial of en banc review. Judge Cabranes raises two points that I find pretty compelling. First, it is not clear to me that the lower court was correct in dismissing this case on summary judgment. There seems to exist a question of fact as to why the City refused to certify the tests, which should have precluded a grant of summary judgment. Second, I also think that Judge Cabranes is correct that the Court of Appeals should have scrutinized the decision below more closely and offered its own independent analysis of the legal issues. By failing to give the case the full hearing it deserves, it looks as if both courts are trying to bury the case. Judge Cabranes' opinion was like a red flag for the Supreme Court inviting it to take the case, which it eagerly accepted.

I have no expectation that the Supreme Court will affirm the Second Circuit in Ricci. I fully expect another 5-4 opinion with Justice Kennedy playing Hamlet but reversing the court below. Nevertheless, I am not convinced that Ricci is ultimately the affirmative action slayer that conservatives make it out to be. As sympathetic as Frank Ricci may be as plaintiff, and I fully grant that he is a sympathetic plaintiff, it does not seem to me that one can sympathize with him without also being sympathetic to the African-American and Latino firefighters whose promotion prospects are more theoretical than actual.

While expressing sympathy for Ricci, denied an opportunity that he felt that he justly deserved, progressives should prompt a conversation about the causes, extent, and fairness of racial inequality. How can we be sympathetic to Frank Ricci who fought difficult circumstances to achieve his goal but we cannot be sympathetic for the black and brown kids who have to attend second-class schools, have extremely difficult home lives, and are more likely to die in a homicide than any other demographic group? Did the Frank Riccis in the New Haven fire department do better on that test because they worked harder, were smarter than their colored counterparts or are there structural disadvantages that account for significant disparate impact that we saw in those promotion tests? Should the City of New Haven use a test for promotion that would disqualify almost all of the Latino and African-American test takers? Is that our vision of a just society?