As JohnD has already noted, the Supreme Court today reversed the Second Circuit decision (in which SCOTUS nominee Sonia Sotomayor joined) that had upheld the city of New Haven’s decision to throw out a test that appeared to favor white firefighters. In today’s decision, Ricci v. DeStefano, the Supreme Court ordered judgment in favor of the firefighters, holding that the city’s fear of litigation was not enough to justify throwing out the test. Justice Kennedy wrote the majority opinion, joined by the Four Horsemen (Roberts, Scalia, Thomas, and Alito). Bottom line:
Confronted with arguments both for and against certifying the test results-and threats of a lawsuit either way-the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
The decision was 5-4, with the usual suspects (Ginsburg, joined by Stevens, Souter, and Breyer) dissenting.
Did Judge Sotomayor get reversed? Yes, she did. But she got reversed 5-4, with the “conservatives” voting one way and the “liberals” voting the other. Sotomayor can justly be subjected to criticism for participating in the Second Circuit’s curious decision to issue a very brief, unsigned opinion, as I’ve already discussed. But, given that 44% of the Supreme Court agreed with her, there’s no basis for saying that Sotomayor’s views on the merits of the case are out of the mainstream. So I frankly doubt that this case will have much effect on her confirmation. Had today’s decision been 9-0 or 8-1 to reverse, that might have been a different story.
The other big news today, as reported by the excellent SCOTUSblog, is that the Court did not decide one of the cases argued this term. The case, Citizens United v. FEC, which asks “[w]hether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers,” will instead be reargued in the fall, and the parties have been ordered to brief the following question:
“For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?”
Well, if that’s not a signal, I don’t know what is. Look for a potential campaign finance earthquake this fall — Austin upheld a state law banning independent corporate expenditures to support or oppose political candidates.
For more on the campaign finance issue, check in with Rick Hasen’s excellent election law blog later today or tomorrow.
I agree that 5-4 is not as symbolic as an 8-1 or 9-0 vote, but unanimous votes, or even near-unanimous votes, are less frequent than more narrowly decided cases (5-4 or 6-3, in either ideological direction.) I don’t have a citation on hand but I recall the narrow opinions occur two-thirds of the time.
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p>Nonetheless, the 5-4 decision in favor of the plaintiffs is consequential as it clearly defines, and restrains, reverse discrimination in the name of “equal opportunity,” sarcasm quotation marks mine.
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p>The SCOTUS’s reversal of the 2nd’s affirmation of the lower court’s dismissal wasn’t helped by the Appeal Court’s abbreviated opinion.
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p>To the extent that a large majority of the public’s opinion supported the Plaintiff’s case, Sotomayor’s judicial reputation will be tarnished, whether justified or not, though not sufficiently for her to be denied a seat on the SCOTUS. Unlike David, I don’t think even a 9-0 reversal would have made a difference.
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p>On the other hand, I think the reversal is hurtful to Obama as it allows conservatives to define him by his Sotomayor pick, i.e., he favors racial hiring preferences and judicial activism over the rule of law.
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p>For a presidential candidate who took pains not to reveal himself, this is a minor, but damaging, defining moment.
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p>Methinks you are wrong, at least if we are to consider recent data.
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p>2008 data incomplete.
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p>2007 data from dailywrit:
Unanimous Decisions (9-0, 8-0): 24 (33%)
Lone Dissenter(8-1):6 (8%)
Two Dissenters (7-2, 6-2, 5-2) :19 (26%)
Three Dissenters(6-3, 5-3): 9 (13%)
Five-to-Four Decision: 9 (13%)
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p>41% were large majority, 26% were small majority, remaining were 7-2, 6-2, 5-2, or Per Curiam
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p>2006 data from dailywrit:
Total Number of rulings offered by the court: 75
Total Number of 9-0 rulings (not including per curiam decisions): 25
Number of Per Curiam Opinions: 8
Total Number of 8-1 or 7-1 decisions: 8
Total Number of 5-4 decisions: 21
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p>Unfortunately that’s an incomplete aggregation. We know that there were 75: 75-25-8-8-21 = 13 decisions that were either 6-3, 5-3 (small majority) or 7-2, 6-2, 5-2 (neither large nor small). Given that there were 33 large majority decisions and 21–34 small majority decisions, it’s quite likely that there were more large majority than small majority decisions in 2006 too. Note that Dailywrit claims on the 2006 page that there were an unusually large number of 5-4 decisions in ’06, and that was still fewer than the unanimous decisions.
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p>So, that’s nearly complete analysis of 2006 and 2007, and your claim is certainly incorrect for 2007 and very likely incorrect for 2006.
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p>In both years
is indeed false.
I will try to find the 2008 source where the 9-0 and 8-1 decisions were about a third of the decisions. Maybe there’s a trend to more narrow decisions than in 2007 and 2006.
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p>In any case, 5-4, 5-3, and 6-3 decisions look to be in the one-third category for the years you cite.
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p>Thanks.
People don’t seem to fully appreciate the way civil service tests work. The written test is scored on a numeric scale, while other tests are basically pass/fail. In other professions, tests (such as the bar, or medical school boards) are pass-fail — the “number” that someone achieved is meaningless, as long as someone exceeds a certain point they are considered qualified. Not so in civil service — the “number” is revered as though it is the ultimate arbiter of competence. It is used to rank people, and that is where the problems come in, because for a myriad of reasons, non-whites are often not at the top of the list.
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p>Would the people who oppose “reverse discrimination” be so thrilled if physical tests were scored on a numeric scale, and the written tests were pass/fail? It could lead to different results. Would those people also support a tested requirement for being bilingual for people who have to work in cities which have a high number of Spanish-speaking residents?
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p>This case isn’t just about “fairness” and eliminating “reverse discrimination”. It is mostly about restoring the old order, is is mostly a way for people to express dissatisfaction that the old order was disrupted. The voices arguing for “equality” are the same voices that opposed busing, and who speak very plainly in terms of race when in private.
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p>Change the tests so that factors that non-whites excel at are paramount and the cries would be very different.
I am always hearing that there are a disportionate number of blacks, Latinos, etc. serving in the Armed Forces. Would not the additional points for being a veteran be a de facto ‘excel’ factor?
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p>Also, your analogy for ranking vs. pass/fail is flawed. Civil service ranking was a progressive reform that you are designating as ‘old order’.
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p>I am licensed myself, and had to take a test, but theoretically the marketplace can absorb an infinite number of lawyers, insurance agents, hairdressers, etc. That test is merely to demonstrate competence. However, there are NOT an infinite number of government jobs (at least, there didn’t used to be…), so ranking was developed to allow qualification and to promote hiring based on factors other than nepotism, political juice, etc. A pass/fail test would simply return those factors to hiring choices.
into the test. Also, If you have ever been to a Boston Fire Department induction for new members you will see that there are many, many clans (families) who have had members for several generations in the department. Except for a few token minorities it is a celebration of tradition. I agree that we have to find a better way to include all Americans into these civil service positions.
The old order? Restoring the old order? I don’t know what that means.
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p>”The voices arguing for “equality” are the same voices that opposed busing, and who speak very plainly in terms of race when in private.” You hear voices? How do you know how they speak in private about race?
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p>You’ve accused the New Haven Fire Department of creating a test intended to be unfair to blacks and Hispanics, intended to favor the “old order.” I can’t think of anything more outrageous than for you to suggest that the New Haven Fire Department had the fix in for the black and Hispanic test takers. Was it even alleged that the test was unfair?
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p>The New Haven exam was designed then redesigned and re-redesigned by consultants to be fair and unbiased. I would hope it tests the knowledge crucial for firefighting, for saving property and saving lives. I am assuming it does. Why would any citizen want less qualified fire fighters? Just for racial balance on the NHFD?
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p>That’s the reason Americans love their sports. It is the last refuge of true meritocracy, performance without regard for race, ethnicity or sexual orientation.
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p>I’m hoping at some point Title VII of the 1964 Civil Rights Act is ruled unconstitutional under the 14th Amendment, because that’s really the discussion that Ricci v. DeStefano has started.
I have had more than one family member tell me that they don’t like the Celtics anymore because they are “too Black now”. They liked Larry, Danny, and Kevin, with good ‘ole ML waving a towel from the bench.
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p>I am not accusing the New Haven Fire Department of consciously creating a test to be unfair to Blacks and Hispanics. I am, however, pointing out that civil service tests rank people based on their written/oral test scores, but assign a pass/fail grade to physical tests. I am also pointing out that in most other professions, tests are pass/fail, but in public safety civil service the “test score” is paramount. While that may have been enacted in order to eliminate favoritism and patronage, the result now is that people believe that this score is the ultimate predictor of “most qualified”. I’d rather have the strongest guy pulling me out of a burning building over a guy who scored 95 versus an 80 on a written test. I also think there is something to be said about diversity in a workforce, that different backgrounds, experiences, and opinions are an important facet to many jobs, particularly those which interact with the public.
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p>Note that the not all of the non-white persons didn’t fail the test, they just weren’t among the top three scorers. Funny how so many people (not necessarily here) just assume that the non-whites failed.
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p>”Most qualified” is even an oxymoron — you are either qualified or you are not. This test is not a bulletproof predictor of future performance. How many people have asked their doctor what their class ranking was? Does anyone know the bar exam score of their lawyer? How about the grades of their kids’ teachers? Funny, though, how this test number is so important when it comes to picking firefighters or cops.
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p>I really think that the situation would be different if the testing was crafted in a way that resulted in an opposite result — whites scoring at the bottom. That is why I refer to the “old order” — because a lot of people just assume that the whites should be the ones being promoted, so no questions are asked about the validity of the exams.
Licensing exams can be P/F because there is no limit on the number of jobs requiring those licenses, like real estate brokers or lawyers or hairdressers.
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p>Not so with the NHFD. There were more applicants than open positions for advancement. I don’t know the exact circumstances, but if there were 50 test takers for 5 promotions, how else would you select them? Pass-fail doesn’t work.
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p>You seem to be advocating quotas and racial “test norming” … let’s have a “black” test, and an “Hispanic” test, and then a “white” test. Blacks will get 14% of promotion slots, Hispanics 12%, and whites 74%, or whatever the demographic racial percentages are in New Haven. That’s the only way to make your most-qualified-is-an-oxymoron BS work.
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p>I want this sort of BS to STOP.
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p>The rest of your post, and apparently most of your immediate family, boarders on racist. Don’t include me in your “a lot of people” group. If the test is fair and an accurate examination of knowledge required to fight fires and lead firefighters, and if 100% of the test-takers eligible for promotion turned out to be blacks, PROMOTE THEM. And I’m a proto-conservative.
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p>I don’t care who gets promoted as long as it’s fair. May the best man, of any race, color, creed, or sexual orientation, win.
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p>Why can’t liberals get behind this concept?
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I read this from Ginsburg’s dissent:
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p>She said that the white firefighters
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p>That’s idiotic. Sure, the white applicants have no “vested” rights to anything. Neither do the black and Hispanic firefighters. But that’s what the test is for! To determine who gets promoted. Open competition, with a fair, unbiased test. The highest scores move up.
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p>All of the firefighters who scored high enough on the test have a right to be promoted. Is this hard to comprehend?
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p>How does that comment pass for sound judicial thought instead of her personal desire for affirmative action, reverse discrimination, and racial and ethnic quotas?
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p>How is this woman on the SCOTUS?
Perhaps a subject for another post, but wasn’t busing one of the worst public policy disasters of the late twentieth century? There were two real-world goals/ justifications for busing: 1. Reduce or eliminate educational segregation by race. 2. Improve educational opportunities and outcomes for minority students. Busing accomplished neither of these goals, as most public schools soon became primarily minority (racial imbalance persisted) and educational outcomes for minorities (percentage of students graduating, performance on standardized tests, percentage going to college, etc) did not improve. One could argue that, if it wasn’t for racism among urban whites, busing would have achieved both of its goals, but the fact is that it was a complete (and very expensive) failure.
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Although I also think that busing was a public policy disaster, I think that ultimately some results were achieved. I look at formerly segregated cities and I don’t see anything even close to the segregation that once occurred. As you point out though, this was mainly achieved because of a lot of white flight.
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p>However, I think that the boundaries have just been moved too. Look at any urban area in conjunction with its suburbs and it almost exactly resembles pre-busing neighborhoods. In Springfield, the surrounding suburbs are more than 80% white, with non-white residents being mostly Asian. There are some communities where there are schools with hundreds of kids, but just 3 or 4 Black kids in them. What’s worse is that at least in segregated neighborhoods, there was a premise of equal funding. No such premise exists across different municipalities.
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p>I think that the way to handle the issue of these non-integrated communities is to work on housing policy. There is great incentive in this state for communities to keep out the poor, and for a variety of reasons a lot of non-whites are poor, so by default they are kept out too. It may not be a conscious decision, but it is not unwelcome either. One of my closest friends told me in confidence that he moved to a mostly white town because he didn’t want his daughter’s first boyfriend to not be white. Of course, on the record, he moved there “because it had great schools”.
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p>I think that the state should use a carrot approach rather than a stick approach. Index local general government aid to poverty rates so that the higher costs associated with the poor are compensated for. Chapter 70 is still not right either — current formulas do not consider the effect of entire classrooms of poor students, and although more state aid is given for poor students, only 50% more is allocated for such students, meaning that there is a base assumption that teaching a class of 17 poor kids is the equivalent of teaching a class of 25 wealthy kids. I find that hard to believe on its face.
White flight has decimated so many cities throughout the country with good examples right here in MA. Busing succeeded in making this country even more segregated than it was before. Has busing improved education for blacks in Washingon DC, Atlanta, Philly, Boston??? Prior to busing we had black and white sections of cities but now we have moved to black or white cities. You call that success?
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p>Could you splain this remark…
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p>Last year the city of Boston spent $17,150 PER STUDENT for education. They spent $1.1 Billion dollars to educate 64,000 kids. My lilly white town with barely any black people spends about $9,000/student. Would you like to compare MCAS or other scoring metrics to see whose kids are getting a better education? Do you think the ancient school buildings in my town make the difference? Do you think it’s the teachers? What cost per student do you think Boston has to spend to achieve results like my town… $20K… $25K, $100K/student??? We both know there is NO DOLLAR figure that will fix the education system for blacks. It’s not about money, it’s about families!
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p>Here’s a list of the 20 lowest spending/student towns from 2008 I’d say they look like towns full of those “evil” white people. How can they do so well on so little money??? Strange…
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p>GEORGETOWN
DOUGLAS
EAST BRIDGEWATER
GRAFTON
MANSFIELD
WRENTHAM
BERKLEY
GRANBY
DARTMOUTH
PEMBROKE
HALIFAX
LAKEVILLE
WESTPORT
SOUTHAMPTON
EASTON
HOPEDALE
WACHUSETT
HADLEY
MEDWAY
SUTTON
The goal of busing was to end segregated neighborhood schools and to a lesser extent, housing segregation. It did that, but white/economic flight pushed the bar too far. It has not achieved equality among schools. It has not solved statewide segregation.
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p>Springfield spends $12,443 per student. 100 other districts spend more per student than Springfield, and 228 spend less. I don’t know which districts are considered to have “really good schools” in Eastern MA, but I know that in the Springfield area, the 2 districts known for their schools are Longmeadow and Wilbraham. Both spend about $2,000 per student less than Springfield, which translates to Springfield spending just 25% more than those towns.
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p>That means that those towns are educating 25 high-income students for what Springfield spends to educate 20 low-income students.
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p>Think about that from a business perspective. For the same payment, would you choose a contract for 25 high-income students or 20 low-income students?
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p>That should illustrate to you that the spending is not yet equalized.
If you wanted equality we should be spending MORE money on Longmeadow and Wilbraham and LESS money on Springfield.
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p>Why do people continue to blame MONEY as the problem!!! Or in your case, white flight??? Are you trying to say that having no white students in a system will cause it to fail for blacks?
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p>I may be stupid (and many many here will concur with that) but your example of how we spend the same money to educate 25 high-income students or 20 low-income students is an example that money is not the issue.
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p>Having graduated form high school in Boston in 1974 I was in the middle of the busing cluster fuck. Rather than move (which financially wasn’t an option for my family) my parents sent us all to Catholic high schools. I am struggling with your claim that the white urban racists destroyed the goals of busing. The idea behind busing was schools/teachers in the black areas sucked and schools/teachers in white areas were just wonderful. Obviously Judge Garrity never attended Dorchester High or South Boston HS prior to busing. So now we bus black kids from Roxbury to the same “wonderful” schools that were predominantly white like Dot/SB HS with the same wonderful teachers and black kids still do poorly.
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p>Conclusion… it’s all because of the white people who moved to the suburbs!!! Damn if you do and damn if you don’t!!! Think if this logic was applied to all our problems in life.
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p>As I’ve said many times on this site, it isn’t the schools OR the teachers… it is the families that make the difference in how well a child does in school and busing did NOTHING to address that so how could they possibly think it would help. Obama himself went to the same schools as many other kids who ended up going nowhere. He had the same teachers and sat in the same dilapitated clasrooms… but he had a Grandmother who wouldn’t let him fail, who wouldn’t let him not do his homework… so he suceeded. The Asian kids who go to the same fucking schools as the black kids do exceptionally well. But how… same books, same classrooms, same teachers… different parents!!!
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p>Black kids don’t need awesome schools or awesome teachers, they need family support and society needs to alter the current black culture that mocks “smart” blacks and diefies assholes like Michael Vick, Snoop Dogg, gang members and all the other immoral lawbreaking assholes… Getting your “criminal record” card punched should be a “black mark” for these icons instead of elevating them to some “hero” level. Why are we(not me) so shocked by the inordinate number of blacks in prison when so many black lawbreakers are held in high regard?? You could pump double the money we spend on education in black areas and the results wouldn’t change significantly. Fix the families not the schools. Kudos to Obama for trying to tell black Fathers that there is more to being a Father than producing a baby… it’s a start!!!
as people disliked busing for a number of reasons. And certainly problems with educational achievement in urban public schools are due to a number of factors.
Why not concentrate on the real problems instead of trying to insinuate some periphery issue is to blame?