I rail often about our swaggering, authoritarian mayor, Michael Bloomberg. (He gave me yet another reason to do so, just last night — and for a really tangy rant about Hizzonner, check out the inimitable Fran Lebowitz, here.)
One issue I think he’s clearly on the right side of, though, is the battle over the application test given to those hoping to become a New York City firefighter. Because black applicants failed the test at higher rates than whites, and because the only allowable explanation for such “achievement gaps” is institutionalized racism, the aggrieved parties filed a lawsuit arguing that the test must, ergo, be racist. Unsurprisingly, they won. Mayor Bloomberg rightly thought this was outrageous, and said so loudly and often.
Even more outrageous is the court’s remedy, recently announced. John Derbyshire picked up the story in his latest podcast. Here’s a transcript. Decide for yourself.
This next story is kind of an old chestnut; but it’s in the news, so we have to report it.
It’s the story of the New York City firefighter exam. You may recall that back in 2007 under the left-liberal George W. Bush administration, the federal Department of Justice sued the city of New York under the 1964 Civil Rights Act. See, the city had been selecting new firefighters from the pool of applicants by administering a pair of written exams. Black and Hispanic applicants failed these written exams at a higher rate than white applicants.
Those exam results triggered one of those rounds of litigation we are all so wearily familiar with. A group of black firefighters joined the Justice Department as plaintiffs, a Clinton-appointed federal judge of far-left-liberal opinions was asked to rule, and we were off to the races. So to speak.
Three years ago Judge Nicholas Garaufis ruled in favor of the Justice Department and the black co-plaintiffs. Six months later he further ruled that the city had practiced, quote, “intentional discrimination” by deliberately devising the written exams in such a way that black and Hispanic applicants would find them more difficult than white applicants found them.
Nowhere in the judge’s ruling was it explained how the city had done this. Judge Garaufis offered no examples of exam questions that would be plainly harder for blacks and Hispanics to answer than they would be for whites. Nor has anyone else been able to point to such questions. In fact, no evidence of intentional discrimination was offered at all, at any stage of the proceedings. Judge Garaufis just declared it to be so, like the Pharaoh in Cecil B. deMille’s Ten Commandments: “So let it be written, so let it be done!” In discrimination lawsuits, evidence is not required.
Judge Garaufis then proceeded to ponder an appropriate remedy for the aggrieved plaintiffs. This week we learned of that remedy.
First, Judge Garaufis imposed race quotas on the New York City Fire Department. The quotas are perfectly explicit. Out of every five firefighters hired from now on, two must be black and one must he Hispanic.
This is a bit peculiar, as in October last year Judge Garaufis declared from the bench that his remedial plan would not include quotas, despite, quote, “the city’s misleading and inflammatory statements to the contrary.” Those misleading and inflammatory statements turned out to be dead-on accurate. To put it slightly differently, Judge Garaufis turned out to be a shameless liar.
To further remedy the pain and humiliation suffered by these discriminated-against applicants, the judge has ordered that any black or Hispanic individual who failed either written exam ”” not both, but either ”” with a score of 25 out of 100 or higher must be placed on the priority hiring list, and will also receive monetary damages, including, quote, “non-economic damages.”
If you look at the actual exams ”” just google “New York City Firefighter Examinations,” they’ve been posted many times on different websites ”” you’ll see that they consist of multiple-choice questions, with four choices per question. Thus if, on either one of the exams, you answered all the questions at random, without even reading them, you would score 25 out of 100 or higher half the time for that exam. If you did it for both exams, since you only have to score 25 or more on one of them, you have a 75 percent chance of eligibility for that priority hiring list and those monetary damages, without having even read a single question!
The blacks and Hispanics who failed the written tests are to receive back pay ”” the estimate is $129 million ”” and, quote, “retroactive seniority” and, quote again, “a retroactively higher salary,” once they’ve been hired through the new quota system.
Some of these test fails go back to 2003. So: You’re a New York City firefighter. You studied hard, passed the exams, got hired, and have been fighting the city’s fires for nine years. Now suddenly one day here come DeShawn and Miguel, loaded up with nine years back pay and benefits, with seniority equal to yours in spite of not having spent a day on the job, and in spite of not having passed the exams. No: make that because of not having passed the exams.
That’s where our beloved Republic has come to with this race-guilt insanity: Failure is rewarded, excellence is punished.
23 Comments
I’m hopeful that the author was joking when he characterized the Bush administration as “left-liberal.”
I doubt that he was. In many ways the Bush administration was anything but conservative. Anyway, that’s hardly the point here.
Since it is hard to imagine anything which the Bush administration did – except possibly Medicare Part D – which could remotely be considered to be left-liberal, one wonders what other delusions the author may harbor.
More to the point, however, is the following article from this week’s Economist regarding invidious discrimination in the workplace:
http://www.economist.com/node/21559357
D’you gotta problem widdat, mofo?
Wonder away. Life’s too short to go to the mat on every thread.
Even though I’m outraged on so many levels, I am also very confused as to how this became an issue to begin with. Why did the Justice department think to bring this case in the first place? While racial differences in testing do call for further investigation to ensure that discrimination in the writing of the test, they do not in themselves necessarily mean anything.
Very confusing to think that this was brought under the Bush administration. Also don’t know if you’ve taken the time to read the test but I could find nothing that even hinted at possible racial biases (like the kind that have been found in SAT testing).
Yep, Strangelove, it’s outrageous, all right.
Confusing if, like Peter, you can’t think of W as anything but a hard-core right-winger.
I have, and I couldn’t either. But blacks and Hispanics failed it at a higher rate than whites, a result for which there is now only one permissible explanation.
Our crippled and hallucinatory society has reached the point where statistically different results between racial groups on any measure of cognitive skills or life outcomes is no longer seen as a possible symptom of racism, it simply IS racism — no matter how unbiased the test, or how persistent the achievement gap despite all efforts to eliminate it.
The purpose, after all, of any sort of qualification test is to discriminate. But when discrimination itself becomes a culture’s summum malum, tests themselves become a social evil.
When an organism loses its ability to make necessary discriminations, it dies. Societies are living organisms too.
Of course George Bush is a hard core right winger. He is by far the most conservative President we have had since at least Herbert Hoover. If there has been another President in the past eighty years to the right of George Bush, I am eager to know who that would be.
Since the Bush administration was notably insouciant towards civil rights litigation, I was curious why they took on the case. The facts reveal that it is not because Alberto Gonzales developed a newfound enthusiasm for affirmative action. Rather, the DOJ was simply enforcing the law as it was written.
The Civil Rights Act of 1964 was enacted when racial discrimination in employment was far more pervasive than it is today. When a test is used in hiring, the law makes a distinction between tests which are intrinsically connected to the type of work in question, and those which are not. If you are hiring rocket scientists and give candidates a test on physics, then it is not actionable under the law if the only people who get hired are Chinese, provided they got the highest scores. However, if there is no intrinsic connection between the job and the test – for example, by giving the candidates a test on English grammer rules – then there may be a Title VII violation, even if there is nothing in the test itself which is facially discriminatory.
The law is written so that when there is the appearance of racial discrimination — as there is in New York, where 2% of the fire fighters are black, in a city where blacks make up 27% of the population — the burden of proof is not on the plaintiffs to show why the test was discriminatory, but rather on the defendants to show why test results are correlated to and predictive of job performance.
The court found that there is no predictive value in the test, and the things which make a fireman good at his job — speed, strength, bravery, and so forth — are exogenous to the test. If you accept that premise, then there is a prima facie case for Title VII litigation.
You could argue that the 1964 Civil Rights Act is outmoded or is bad legislation. Or you could argue that the test results are correlated to job performance and hence exculpatory. However, the facts suggest that the Bush DOJ was simply applying the law to a situation which falls well within the purview of the statute.
I am all for a meritocracy, and I want the most capable firemen to get hired, not the ones who exhibit the most ethnic diversity. However, one has to wonder why black representation in the fire department is about ten percent of its percentage of city residents, or how the SAT-type questions in the test are relevant to running into a burning building to save crippled grandmothers. While I am sympathetic to your viewpoint, I don’t think that it is the black and white (no pun intended ) case which you portray it to be.
Go, fireman, go! Go fetch Granny!! Good boy!!!
As I said, when discrimination itself becomes a culture’s summum malum, tests themselves become a social evil. Q.E.D.
P.S. I won’t argue with you about W, Peter. I can certainly understand why you guys don’t want him.
I think the government has a role to play to ensure that there is equality of opportunity in hiring. The 1964 Civil Rights Act was passed at a time where it was common in parts of the country for qualified blacks to be discriminated against by employers because of their skin color. The only way for blacks to get a fair shake was for the government to mandate equal opportunity laws.
There were also instances where tests were unfairly applied, as with Lenny Bruce’s joke about literacy tests for blacks. “All you have to do is write down your name. Here’s a ball point pen and some wax paper to write it on.”
The fact that the percentage of New York City residents who are black is ten times the percentage of firemen who are black is an eyebrow raiser. If one assumes that blacks apply for fireman jobs in the same proportion as other ethnic groups, then one has to ask if other groups are ten times as strong, fast, or brave.
There is a vast distinction between equality of opportunity and equality of outcome. An unequal outcome does not prove inequality of opportunity. However, based on the facts presented here, there is at least the appearance of unequal opportunity.
Right, and the reason was that they failed this cognitive-ability test at higher rates. Yet nobody has pointed to anything in the content of the test that was racially slanted in any way. So yes, one “has to ask”…
But some questions aren’t allowed. So the test just has to go.
Really? Based on what? Nothing more than the unequal outcome itself. If not that, then somebody ought to be able to show us what there is in the content of this test that is “racist” in any way.
As I said above, we have now reached the point where “unequal outcome” is simply synonymous with “racism”. So the only allowable remedy, in our withering climate of all-encompassing race guilt, is to decide that whatever cognitive abilities are measured by this test simply aren’t relevant when choosing firemen — in other words, to use “racism” to justify lowering the standards until we get the results we want. (See also here, for the “sexism” variant.)
Go, fireman, quick!! Run and fetch Granny!!!
“Go, fireman, quick!! Run and fetch Granny!!!”
OK, I’ll bite. What’s the reference?
The datum which is missing is whether blacks apply for fire department jobs in the same proportion as non-blacks. Let’s assume they do.
If blacks are 2% of the fire department and 27% of the population, therefore 98% of jobs go to the remaining 73% of the population. Ergo non-blacks are 18 times as likely to get the job as blacks.
If you think that the cognitive ability of black job applicants is so far below that of non-blacks that the non-black applicant pool is 18 times more qualified: don’t be coy, come out and say it.
On the other hand, if you think that the difference in cognitive ability is either non-existent or within a much smaller range, then there is likely to be something about the test which does not accurately reflect cognitive ability.
In this case, the unequal outcome itself suggests an inequality of opportunity. The difference is so extreme that the appearance that something is amiss can’t be avoided.
Henry, no reference. I was just responding to Peter’s suggestion that, in his expert view, cognitive skills were clearly unnecessary for running into houses and pulling people out, which is of course all that firefighters do.
Peter, the issue here is not the rate at which nonwhites apply to take the written test, but the rate at which they pass it.
The higher failure rate can only have two explanations: either A) the test itself is constructed in a way that makes it inherently more difficult for black people to pass, due to factors that have nothing to do with cognitive ability, but only with pernicious bias, or B) the percentage of black applicants possessing the threshold cognitive ability required to pass the test is actually smaller than the percentage of white applicants.
If the plaintiffs are claiming A), then it ought to be possible for them to explain just what it is about this test that biases it, in some purely racial/cultural way, in favor of white applicants. However, nobody has made the slightest effort to do this. Nor have you. (Go ahead, have a try. Look at the questions.)
That leaves only B). There is of course no obvious reason why B) mightn’t in fact be true — but B) is such a horrifyingly, radioactively unacceptable answer that for any politician or bureaucrat to suggest that it is obviously the most likely explanation would mean the end of his or her career.
So: the only permissible answer is that the test simply MUST be racist, in some mysterious way. How do we know that? We know that because when we aggregate the scores, we find that members of different races fail at different rates! Q.E.D.
In other words: because we have effectively declared it to be an a priori truth that there cannot possibly be any aggregate difference in the statistical distribution, within various racial groups, of the abilities the test seeks to assess, the difference in outcomes can, therefore, only be due to racism — even if we have no idea whatsoever just what it is about the questions on the test that could possibly be imagined to taint them with such a bias.
So: the test has to go!
Court is adjourned.
The rate at which blacks apply is relevant regarding the disparity between the percentage of blacks in the fire department versus the percentage at large. If very few blacks apply for the job, this could explain why their percentage of the workforce is so low.
While your logic is correct, it does not square with the law as it is written. See above. The plaintiffs are not required to document why the test is discriminatory. The sole burden of Title VII statutory law is on the defendants to demonstrate why the test is correlated to and predictive of job performance. There is a distinction between the arguments used in litigation and moral or practical arguments.
The suggestion that there is an a priori truth that all races are equal in all ways is nonsense. The data are what the data are, not what we wish them to be. There may or may not be innate differences between blacks and other groups regarding cognitive ability. I have no idea. However, there is no imperative that every group be the same, just as there is no imperative that there be differences among them.
This may be heresy in polite company, but there’s no reason to be spooked by discussing it. A clear understanding would pay off in spades. It’s niggling to think that subjects which may be distasteful should be subject to a black-out.
I said above that the extreme disparity in results suggests that “there is at least the appearance of unequal opportunity.” That’s a pretty low bar, and I think that the delta of 18x clears it pretty easily. When the difference is so extreme, it certainly appears that something is out of whack. Hence, as also mentioned above, it’s not the black and white issue which Derbyshire portrays it to be.
Speaking of bars, I hope you forgive me for recalling the time when you ordered another beer at the Peacock Inn. “Hey, barkeep!” Governor misheard you in the din, and thought you said “Hey, darky!” Hilarity ensued.
Forgive me, Peter, but your “18 times more qualified” remark indicates that your grasp of statistics is on a par with your knowledge of firearms. For some clarification, I refer you to the blogosphere’s premier statistician, La Griffe du Lion. See also here.
If 270 blacks live in a city of 1000 residents, and two of them work for the fire department, that is a ratio of 0.074 jobs for every one percent of the population.
If 98 jobs are distributed among the remaining 730 people, that is a ratio of 1.342 jobs for every one percent of the population.
0.074 multiplied by 18 is 1.342.
Peter, I wasn’t quibbling about the rate of employment on the NYFD being 18 times higher among blacks than nonblacks. It was the simplistic and misleading “18 times more qualified” remark (i.e. “Are you really saying that white people are 18 times smarter than black people??”) that I was referring to, and how a difference of a single standard deviation in innate ability affects the resulting failure rate in tests with pass/fail thresholds. La Griffe explains this at the linked page.
And of course your argument here assumes also that blacks apply for the job at the same rate as whites.
And this is exactly the point. The test measured cognitive skills that presumably affect how well a firefighter retains the information he is given in training, how well he will be able to generalize from what he’s been taught to the particularities of each novel life-and-death situation, and so on. Presumably the Fire Department has, up till now, deemed this assessment to be a valuable filter, and an important standard to uphold, in their effort to get the best people for the job. Some people passed, and others failed; that’s just the way of the world. If you wanted to be a firefighter, you had to pass the test. There were always plenty of applicants.
Nobody ever raised a ruckus on behalf of all the white people who failed; it was just assumed that they were not qualified, as individuals, to meet the demanding standards of the New York Fire Department, which can fairly claim to be the best fire company in the world.
But now, in the brave new world lorded over by Judge Garaufis, it is no longer enough to assess people as individuals. Now we must lump them together by tribe, and getting the tribal head-counts to come out exactly the way we want is so very much more important than anything else that anything standing in the way must go. Standards too high? No problem, we’ll just lower ’em. Tests too hard? Out they go.
Please forgive me if my enthusiasm for these improvements to the system seems to be flagging a little here.
Fine: then your issue is with Title VII, and what you consider to be the unfair burden it places on defendants.
The law is written in such a way that the issue of whether the test is discriminatory is moot. Hence it was not addressed in the trial.
However, the Bush DOJ litigated because the facts of the case fit the requirements of the bill, and the judge made his decision because the plaintiffs were unable to prove to his satisfaction that there was a bona fide correlation between the test and actual performance on the job.
My view is that placing the burden of proof on the defendant might have made sense in 1964, but does not make sense today. However, the Bush DOJ and the judge are bound by how the law was written, not what you or I might wish it to be.
OK, you can change that from “18 times as qualified” to “18 times as many candidates are found to be qualified.”
Well, obviously. (Or “duh”, as I believe the youngsters say.)
There is also the matter of the sympathies of the individual judges deciding the cases, of course, and the egregious remedies they propose.
In sum: a depressing augury for our tottering society.