Supreme Court Wrap-Up

Perhaps Judge Sonia Sotomayor's most controversial decision during her tenure on the appeals court was her ruling against a group of white firefighters from New Haven, Connecticut.  The firefighters sought to overturn that city's decision to void the results of a promotional exam, on the grounds that the passing rates of minority candidates were disproportionately low.  The city reasoned that they would likely be subject to a lawsuit from the minority candidates if they honored the results of the exam.  In the meantime, the white firefighters who did well claimed that they were, in effect, being discriminated against on the basis of their race.  Today, the Supreme Court sided with the white firefighters ("Supreme Court Finds Bias Against White Firefighters").

The case revolves around the concept of "disparate impact."  Essentially, civil rights law seeks to prevent "disparate treatment"; that is, people may not be treated differently on account of their race.  But when an apparently neutral, non-discriminatory practice has a disparate impact on a minority group, civil rights law may also be invoked.  Conceivably, if New Haven had carried through with the results of the exam, essentially promoting only white firefighters, then minority firefighters could have filed a lawsuit on the basis of disparate impact.  Whether they would have prevailed or not is an open question, as the city pre-empted the lawsuit by discarding the results.

While we are certainly in favor of equal protection, and while we really hate to find ourselves agreeing with Antonence Scalimas, we think the Supreme Court got this one right.  We think it is significant, for example, that nobody seemed to be claiming that the test itself was somehow biased.  Presumably, if minority candidates had been forced to file a disparate impact lawsuit, they would have made this argument.  Maybe there is some validity there.  As it is, however, the city of New Haven took it upon itself to declare that there must have been something wrong with the exam just because minority candidates didn't do as well as they "should have" given their share of the test-taking population.  As any statistician will tell you, though, correlation does not prove causation.  In other words, even though a look at the data would "show" a correlation between race and success, this in no way shows that race "caused" the performance, either good or bad.

Indeed, the 19 plaintiffs (18 white firefighters and one Hispanic) told tales of intensive and extensive preparation for the exam, "giving up second jobs and missing family celebrations.  The lead plaintiff, Frank Ricci, who is dyslexic, said he studied for 8 to 13 hours a day, hiring an acquaintance to tape-record the study materials."  Can one in good conscience say that these people's results were undeserved?

Now, perhaps the minority candidates who failed studied just as hard.  They should certainly be given the opportunity to make a case if they feel they can show that somehow the content or structure of the exam was insurmountably geared against them.  But we cannot help but feel that any exam that calls for people--even people who supposedly have some racial/cultural "edge"--to spend hours upon hours preparing is a just-plain difficult exam.  While it may behoove the city of New Haven to look closely at their promotional exams to screen out any possible bias, it seems highly irrational to suggest that the folks who DID do well should have this accomplishment negated.