Ginsburg's dissent in Ricci v. DeStefano

Instead of rejoicing over the outcome of the Ricci case, the fact that four justices signed on to GInsubrg’s dissenting opinion fills me with both anger at liberals and dread that the liberal viewpoint will eventually triumph over reason and sensibility. Ginsburg writes, “The Court’s order and opinion, I anticipate, will not have staying power.” I translate this as meaning that Obama is going to be president for another seven and a half years, so the liberals are only one heart attack away from reversing Ricci and imposing their will. It’s an unusually unsportsmanlike statement and demonstrates a disrespect for stare decisis that’s unbecoming of a Supreme Court justice. When something like that shows up in a dissent, it indicates that the decision created a great deal of ill will.

As I explained in my previous two posts analyzing the Ricci decision, the statutes passed by Congress are racially neutral and state that it’s unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 USC §2000e–2(a)(1). It doesn’t say that it’s only unlawful to discriminate against minority races. The Supreme Court has continuously paid at least lip service to the concept of race neutrality, and theoretically there are only a few limited circumstances in which it’s legal to discriminate against whites in order to favor minority races. One such circumstance is in education where the need for “diversity” is such a compelling interest that it allows colleges to consider race as a factor in admissions See Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

It seems clear to me that Ginsburg doesn’t agree with the idea of race neutrality. She believes that it’s always desirable to discriminate against whites, and presumably Asians as well, in order to benefit blacks and presumably Hispanics. But she dare not say this directly in her opinion, because such a direct statement of what the left really wants is unpopular with the majority of Americans, and it would also make her dissent irrelevant because it would be such an obvious misstatement of the current law, a misstatement of both the text of the statutes and judicial opinions interpreting the statutes. Her actual dissent is a lot more pernicious, because it undermines the holding of the majority by repeating and thus bolstering the standard liberal half-truths and lies.

If you don’t believe my view of Ginsburg’s true motives, then try to imagine how she might have decided this case if the facts were the same except the races were reversed. After the city gave the test, too many blacks did well on the test, and white groups in the city complained that too many blacks were being promoted, and then the city threw out the results under the pretext of disparate impact. Does anyone seriously think that Ginsburg would agree with the city? Hell no! It would be an obvious case of discrimination against blacks!

At the beginning of her dissent, Ginsburg mentions that the city is nearly 60% “African-American” and Hispanic. She thinks this bolsters the view that the fire department needs more black and Hispanic firefighters in command position. This is only because she judges fairness by outcomes. From my perspective, the fact that non-Hispanic whites are a minority in the city of New Haven makes it more likely that the city refused to certify the test results for the worst possible reason; to discriminate against a minority (non-Hispanic whites) in order to benefit the majority.

Ginsburg complains about the historic “failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often relied on criteria unrelated to job performance, including nepotism or political patronage.” Dissent at p.3. It’s ironic that she mentions this, because it’s exactly for these reasons that civil service hiring and promotions are so often test based. An objectively graded test doesn’t care if the test taker donated money to the campaigns of the currently elected politicians, or paid kickbacks to get the job, or is a relative of a powerful person within the civil service. Ginsburg should be praising the fairness of an employment practice which promotes white Republicans in a city run by black and Hispanic Democrats.

Ginsburg devotes several pages of her dissent to describing the process by which the exam company created and administered the exam. The actual questions contained in the exam aren’t available to me, and I’m not an expert in firefighting so even if I could read the exam questions I wouldn’t fully be able to evaluate their relevance to the job. Given my experience with companies which sell services to government, I will concede the likelihood that Industrial/Organizational Solutions, Inc was more interested in making as much money as possible rather than creating the best possible exam. But I don’t see where the law requires employers to use the best possible exam or the best possible employment practice, because perfection is an unattainable goal. Mediocrity is the inevitable norm in most large organizations. The question should be whether the exam was adequate for its intended purpose, despite its flaws. The purpose was to create a merit-based means to award promotions, free from corruption. The majority cited testimony “that the test questions were based on the Department’s own rules and procedures and on ‘nationally recognized’ materials that represented the ‘accepted standard[s]’ for firefighting.” Majority opinion at p.7.

Ginsburg would pick at every possible flaw she could find in the exam, and then rule that these flaws caused disparate impact against minorities, without any evidence at all that minority test takers did worse on the flawed questions relative to white test takers than they did on the good questions.

Ginsburg criticizes the very notion of written tests:

Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432.

We know that the real reason she dislikes written tests is because blacks perform poorly on them, but because she refuses to admit the real reason she dislikes them, she doesn’t need to explain why she thinks blacks perform poorly. I strongly disagree with the notion that written tests are a bad way to select fire officers. At an actual fire, the officer’s job is to direct the activities of the lower-ranked firefighters. Therefore, the officers must know a lot about firefighting practices so they can best direct the firefighters towards tasks which will minimize property damage and preserve human life. I would also say that intelligence is important for a fire officer, because the smarter officer would make smarter decisions during a fire. If black firefighters are unable to correctly answer test questions about the best way to fight fires, then they shouldn’t be promoted. It seems to me that a firefighting officer is not the sort of managerial job in which the manager can just rely on the expertise of his underlings, but hey, I’m open to hearing from people who actually work as firefighters who might disagree with my assessment.

Ginsburg admires other municipalities which don’t use written tests:

[M]ost municipal employers do not evaluate their fire- officer candidates as New Haven does. Although comprehensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assessment centers (“simulations of the real world of work”) as part of their promotion processes. P. Lowry, A Survey of the Assessment Center Process in the Public Sector, 25 Public Personnel Management 307, 315 (1996). That figure represented a marked increase over the previous decade, see ibid., so the percentage today may well be even higher. Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam. Id., at 309.

Despite the existence of “experts” willing to testify that these alternative selection methods are better, it’s not at all clear to me whether the real reason for using these other selection methods is to select the best possible officers, or merely to promote more minority firefighters. I find it very suspicious that the “best” selection method, according to Ginsburg, happens to be the method which promotes the most minorities.

If one believes Arthur Jensen, that the average black has a lower g compared to the average white, then these assessment centers are able to rank black candidates higher by either using less g-loaded selection methods, or by surreptitiously boosting scores of minority candidates in violation of 42 USC § 2000e–2(l) which prohibits race-based score adjustments. Assessment centers have an obvious financial motivation to violate § 2000e–2(l), because the reason municipalities use the centers is to obtain racially “correct” results. Given that assessment centers have a strong financial motivation to cheat with respect to § 2000e–2(l), and that their clients, the municipalities, have no motivation to call them out on the cheating, I would suspect that cheating is taking place.

Appellate judges, who are not experts in statistics, test bias, or industrial psychology, should not be in the business of making the sort of determinations which Ginsburg would like to make. Ginsburg is so obviously biased in favor of preferring the selection method that promotes the most blacks, one cannot trust her assertions that her favored method selects better fire officers.

The majority wrote about the inherent conflict between disparate treatment and disparate impact. At the beginning of Section II-B of her dissent, at p.18, Ginsburg writes:

Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions. Cf. ante, at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 800 (1973).

Ginsburg can only write this because she believes, or pretends to believe, that disparate impact is always caused by racism. Ginsburg cannot comprehend, or pretends not to comprehend, the possibility that in many cases, black candidates are, on average, less able at performing the jobs in question.

In contrast, the majority allows the possibility that the black firefighters in New Haven lack the same ability as the high-scoring white firefighters to learn about fires and firefighting best practices, and to apply that knowledge to fire situations

Unfortunately, so long as liberals insist on wrongly believing that disparate impact is always caused by racism, and that black job candidates are, on average, always as able as the white candidates, the matter will not be settled. If liberal Democrats continue to hold the office of President until one of the five majority justices retires, then Ginsburg’s ominous prediction of the decision “not having staying power” will come true.

* * *

It's too bad I can't get paid money to analyze and write about court decisions for a living. It seems like it would be a fun job.

Comments

[P]

Great analysis HS.

[40oz of Hate]

Well said.

[Turambar]

"Ginsburg would pick at every possible flaw she could find in the exam, and then rule that these flaws caused disparate impact against minorities, without any evidence at all that minority test takers did worse on the flawed questions relative to white test takers than they did on the good questions. "

An excellent point that I havent seen raised anywhere else- she handwaves that there may have been some questions appropriate for NYC but not New Haven, but where is the proof that the candidates have a disproportionate difficult on these "bad" questions?

"But I don’t see where the law requires employers to use the best possible exam or the best possible employment practice, because perfection is an unattainable goal."

Perfection in this case would have been defined as a even racial split or a preference to the minorities. But that cannot be determined before the test is administered. So Ginsburg proposes as system that is completely unworkable.

Notes about the oral test that she lauds: it is everything that you would avoid if you were trying to put together a fair test. Applicants are interviewed in person by a panel that has an affiliation with the department. So immediately the persons race is evident and can be take into account, their use of non-standard English in answering questions could be help against them, and since their identities are know, panel members may have already formed opinions about the applicants.

And Ginsburg is scratching her head about why New Haven didnt go whole hog for this method?

"If one believes Arthur Jensen, that the average black has a lower g compared to the average white..."

Its not necessary to go to these lengths. The disparity in test scores is explainable by the studying and test prep that was documented in the petitioner's brief. No one has documented similar efforts by the underperforming minority.

And yet Ginsburg's argument ignores this factor (except for a condescending pat on the head that Ricci deserves "sympathy").

BTW- does anyone know where the individual test scores are? I know I saw them somewhere back in the spring, but now I cant find them. By recollection is that reweighting the oral exams wouldn't have helped much.

[sabril]

"It's too bad I can't get paid money to analyze and write about court decisions for a living. It seems like it would be a fun job."

Your chances would be a lot better if you could stomach the idea of toeing the liberal party line.

[Turambar]

Ah found the scores:
http://www.adversity.net/newhavenfd/default.htm#lieutenant%20scores

There is one anomaly candidate (black) who has a written score of 59 and a oral of 92.08 which is a gap of 33 points. Sorry this guy cant be promoted in my mind.

Reweighting to a .55/.45 oral split which is what Ginsburg advocates based on unexamined testimony from Bridgeport, result in two blacks in the bottom of the top 15. This is essentially the result in the original results where 13 of the top 15 where white. If you are only hiring for 8 vacancies, it still isnt possible to hire a minority.

If we consider only the oral portion- a race aware test- then there would be 2 blacks in the top 15 and no Hispanics. And one of them is the anomaly guy. So you still be hiring at most 13% minority.

Is this then fine for Ginsburg? Because if so she seems to have left out the poor Hispanics from her calculations.

And incidentally, if the goal is just to have any minorities hired at all, then by far the most sensible thing for New Haven to have done was to hire for 10 or 12 openings instead of 8 because then they would have grabbed people at the bottom of the list and avoided all of these expensive lawsuits based on after the fact thinking.

[david]

this should become a classic along the lines of "why computer programming sucks" (how i discovered your blog). i think it will be one of the most emailed of your recent articles.

[Fishbein]

The number of Jews, like Ginsburg, on the Supreme Court is about 1100% higher than the numbers in the U.S. population. This must be a much greater overrepresentation than that of whites on the New Haven FD versus whites in the city population.

How would Ginsburg reconcile that with her "60%" argument?

[Peter A]

This is the problem with conservatives. Too many of them, like HS, focus on the details. Of course civil rights discriminates against whites - that is really the point, isn't it? What liberals see, and conservatives want to ignore, is that we are stuck in a country with millions of African Americans who will never ever pull even on a truly level playing field. The liberal solution, at its unspoken core, is to buy social peace by giving blacks and latinos a hand and the illusion of an equal outcome. The conservative/libertarian fantasy solution is that abstract notions of fairness and equal opportunity are going to somehow be found acceptable to millions of undereducated, underemployed lower IQ people. Conservatives are living in a dream world. Either you pay for social peace, or you need to fight for a radical reorganization of the American population through a breeding program and/or ethnic cleansing. And I don't see any conservative politicians standing up for that. Keeping millions of blacks in poverty, whether they deserve it or not, is just not tenable long term.

[HS: Ginsburg didn't write anything like that in her dissent.]

[Rob]

Since she can't be removed from the court, she should just come out and say what she really believes, which is one or both of the following:

1) AAs are a victimized group and deserve special (and unequal) treatment to make up for past wrongs by the opppressor group

2) Fairness is equality of results as exemplified by equal numbers (percentage-wise) of each race, gender, ethnicity, and sexual-orientation in every job.

[Alexis Finterhoven]

Very nice dissection, HS.

As you point out, Ginsburg is growing even more prickly and brittle in her old age.

Think of Sotomayor as a younger, dumber Ginsburg. A court packed with such picks as Soto is the dream that Ginsburg, Obama, and all the zombies hold closely to their hearts.

[sabril]

"The liberal solution, at its unspoken core, is to buy social peace by giving blacks and latinos a hand and the illusion of an equal outcome"

If we were actually getting "social peace" in exchange for all this affirmative action, then you might have a point.

But the sad truth is that certain people cannot be appeased.

[Anonymous]

---If we were actually getting "social peace" in exchange for all this affirmative action, then you might have a point.

But the sad truth is that certain people cannot be appeased.---

Might as well keep the money and buy more ammo. The payout has gotten us nothing in return. Not that I was asked if I wanted to pay blacks to keep them from rioting in the first place. And Patrick, nobody is keeping blacks in poverty, except themselves.

[To the place where I belong]

"try to imagine how she might have decided this case if the facts were the same except the races were reversed. After the city gave the test, too many blacks did well on the test,"

I tried to imagine this, but I cannot.

[Steve Sailer]

"It's too bad I can't get paid money to analyze and write about court decisions for a living. It seems like it would be a fun job."

You should have picked your grandfather more carefully.

[HS: I sure wish that Paul Cravath was my grandfather.]

[Peter A]

"nobody is keeping blacks in poverty, except themselves."

That's a satisfying assertion if you're an old fashioned moralistic conservative. But if you actually believe that blacks are at a genetic disadvantage, as I assume HS does, what exactly is a black man supposed to do about getting out of poverty? Whites have created a civilization tailored to white and Asian strengths, and for which black and latino skills are often very poor fits. And the situation is getting worse since our economy is becoming increasingly dependent on brain power and less on physical power. Most blacks simply cannot lift themselves out of poverty on their own no matter how much you scold or mock them (or spend money educating them). This is why HBD undermines traditional conservative thought almost as much as it does liberal thought. If black behavior is largely genetically determined then blaming blacks for their social dysfunction is not helpful. I have no doubt that when HBD becomes accepted by mainstream society, as it will sooner or later, liberals are going to use it as the ultimate justification for AA, and it will run along the lines that blacks are born with a disadvantage, and therefore we need to give them extra help.

[newt0311]

@Peter A,

The unspoken assumption in your writing is that everybody deserves to get "out of poverty." All I can say to that is: No. Life sucks and sometime it sucks more for certain groups than others. That does not justify mass remunerations to that group. In fact, a society which does so will quickly start falling behind (as indeed ours is doing) and eventually die out. Any society with the will to survive (which I would argue is a central requirement of a healthy society) would acknowledge this fact of disparate ability and then move on.

[The Undiscovered Jew]

"I have no doubt that when HBD becomes accepted by mainstream society, as it will sooner or later, liberals are going to use it as the ultimate justification for AA, and it will run along the lines that blacks are born with a disadvantage, and therefore we need to give them extra help."

I think HBDers are willing to support AA and welfare benefits for blacks under a genetic Rawlsian justification in exchange for setting up policies that discourage the underclass from having too many children and for an end to all immigration.

First world countries can only support an underclass if they have a large enough tax base to support the underclass. Therefore, in order to maintain the welfare system for the disadvantaged, it is necessary to control underclass reproductive decisions in same way.

As I've said before,

Rawls + HBD = Eugenics.

[Brandon Berg]

Peter A:
"Keeping millions of blacks in poverty, whether they deserve it or not, is just not tenable long term."

The big lie about affirmative action is that it lifts NAMs out of poverty, but it really doesn't. What AA does is move NAMs who already more or less have their acts together up a rung or two. If you're smart enough for a directional college, AA will get you into a state university. If you're smart enough to be an RN, AA might get you into medical college. If you're a decent fireman, AA might make you a lieutenant. But if all you're qualified to do is sweep floors, there's not a whole lot AA can do for you.

[CC01]

Half Sigma, I found your analysis to be fair and accurate.

Peter A, you make some fine points and seem to grasp reality better than most. This thing we currently call "Conservatism" offers no answers and is in the process of being replaced by a new Right in America.

TU Jew, outstanding point, as time goes on thoughtful people will need to bring these ideas to the mainstream in a serious and compassionate manner.

[An engineer]

Will it ever occur to the left that they need the good will of the majority to protect the rights of the minority, particular when they've done their best to remove any impediments to populist based action.

[The Undiscovered Jew]

"TU Jew, outstanding point, as time goes on thoughtful people will need to bring these ideas to the mainstream in a serious and compassionate manner."

It really would not be that hard to get the US back on track again. All we have to do is manage NAM social dysfunction and provide some modest safety net for them.

Managing the NAM population via extra law enforcement, shutting off all immigration, vocational education for NAMs, garnishing the welfare checks of underclass women who have babies out of wedlock, paying drug addicted women to get sterilized, etc, are very simple policies to implement but they would go a long way towards saving the US.

The hard part is getting the elites to accept HBD.

If genetics forces the elites to abandon neuro-Blank Slatism then the correct policies to manage the NAMs will be obvious to everyone.

[Law student]

You obviously do not understand the difference between disparate impact and disparate treatment. It is not disparate treatment to rectify the effects of an exam that has a disparate impact. Employment tests are historically biased against black and latino test takers. This is can be intentional or unintentional. Read your history.

[Dan]

I must say, in my opinion this post is worthy of the circular file.

First of all, the idea that Ginsburg (and the rest of the left) has a whole host of secret goals that they're trying to ever-so-subtly advance without ever telling anyone because the American public would disagree is preposterous. Maybe you and Hillary Clinton can start a club for people believe in "Vast-[insert opposing political extreme]-Wing Conspirac[ies]." Perhaps if you could take her arguments for what they are and accept that she may ALSO have a legitimate viewpoint, you could more fully understand where her opinion comes from. (Alas, it seems likely that you have no desire whatsoever to understand her opinions.)

Second, I think it is rather foolish to imply from Ginsburg's statement that the opinion "will not have staying power" that she's hoping one of her colleagues will croak over the next few years. Could she possibly be reflecting the reality that, since the Supreme Court sidestepped the constitutional question and treated the case as one of statutory interpretation, the Ricci decision is liable to be modified by statute?! Apparently not; it's quite obvious that instead she's hoping her co-workers suddenly die -- how unsportsmanlike!

Next, you object to Ginsburg's discussion of the demographics of New Haven and the history of many police and fire departments promoting for nepotism. You ignore that the purpose of her discussion is to illustrate that the city has a strong interest in creating a more diverse fire-fighting force that reflects the community. Perhaps you do not agree, but surely you can appreciate this point given that you at least acknowledge the reasoning of Bakke v UC Regents?

There are many more things about your post, and, particularly, the comments, that I find objectionable. ("Life sucks . . . for certain groups more than others . . . [due to their] disparate ability"?! But... but... the whole "idea" behind this post is that, supposedly, everyone is equal, and should be treated as such...) Far more disturbing than any other point is your discussion of the supposed benefits of written tests. You argue that written tests are a good way to test firefighting performance because firefighters must "know a lot about firefighting" so they can "direct others" and, moreover, should be "intelligen[t]." Let's concede this point. You give no reason at all why written tests must be conducted in order to assess these qualities. You're only partially right that the reason Ginsburg doesn't like these tests is because blacks perform poorly on them. This ignores a crucial additional fact: Ginsburg doesn't like the WRITTEN tests because they UNNECESSARILY disadvantage blacks. There are other ways of assessing whether people can "direct others," "know a lot about firefighting," and are "intelligen[t]." Perhaps, for example, the city could have used an assessment center where firefighters were actually tested on their ability to perform firefighting tasks. Oh wait, I'd forgotten, written tests are the only way of testing whether people are capable. Therefore, anyone who favors another testing method must be racist. Wait a second, what am I typing again?

It is difficult to come up with an example of a type of test that would necessarily disadvantage white applicants. However, the reasoning behind the disparate impact laws comes from Griggs v. Duke Power Company, where a company that was involuntarily forced to desegregate instead adopted a HS diploma for its workers, thereby excluding a disproportionate number of African-Americans. The disturbing part of the Griggs case is NOT that there was the diploma requirement, but that the requirement was UNNECESSARY in light of the rather menial tasks the workers were to perform. The courts worry that the test is simply a mask for discrimination. Similarly, here, the idea is that the city could have used another test that would have adequately tested applicants without coming up with test results disadvantaging a particular minority group. Although 5 members of the Supreme Court said no other such test existed, this is a point about which reasonable minds can disagree. Unfortunately, that means casting aspersions on Ginsburg is NOT reasonable. I'd shelve the plans to write court decision commentary.

PS -- why the quotes around "African-American"? Are you trying to imply that they're not African? Or not American?