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When Nepotism Means Discrimination: The Legacy of Ricci

When Nepotism Means Discrimination: The Legacy of Ricci

In ruling 5-4 against the City of New Haven, the Roberts Court provided a peek into the most persistent misunderstanding surrounding race discrimination– the problem of racially privileged legacy often tied to nepotism.  The case revolves around a promotional test developed by a private company but administered by the city of New Haven and used to determine firefighters eligibility for promotion from lieutenant to capitan.  

When the results of the test yielded no black firefighters eligible for promotion, and fearing that moving forward on the results of the flawed test would subject the city to a disparate impact discrimination suit by black firefighters, the city decided to scrap the test and create a new assessment for promotion.  But before the city was able to create any new form of evaluation the white firefighters sued, demanding the city stick to the results of the first test.  As Justice Souter noted in oral arguments the city was in a “damned if you do, damned if you don’t” situation and faced lawsuits no matter which direction it took.

In challenging the city’s use of the test the evidence produced a complicated picture of race relations among firefighters.  Of the candidates who actually took the exam, every single minority candidate was a first-generation firefighter.  This is in stark contrast to the white applicants who were part of multi-generational firefighting families.  During the evaluation process minority candidates complained that they didn’t have access to the same study materials as white candidates because of their status as first-generation firefighters.  They also challenged the relevancy of many of the questions on the test, arguing that they had no relationship to issues of leadership, experience, or accountability.  

Despite this evidence, the majority declared the city of New Haven essentially pandered to locally politically influential African-American politicians in deciding to scrap the test.  In siding with the white firefighters the Court borrowed from equal protection analysis and imposed the “substantial evidence” requirement onto disparate impact claims.  In this case it means the city of New Haven would have to show that its actions in throwing out the first test were justified because there was “substantial evidence” that the test was flawed and that if they relied on the results New Haven would be unlawfully discriminating.

Predictably the Roberts Court does not suggest what kind of evidence would meet this “substantial evidence” standard, nor does the Court acknowledge that the outcome alone (as is the case in other areas of discrimination analysis) is evidence enough of a discriminatory disparate impact.  In fact, the majority completely disregarded the evidence presented by the city in defense of its decision and instead focused solely on the city’s very legitimate concern that its decision was motivated by a desire to avoid litigation by the black firefighters.  Justice Alito ascribes a malicious political bend here suggesting that the city didn’t even care if it got sued, that all it was trying to do was to politically appease certain constituents- namely African-Americans.  But put aside Justice Alito’s allegations and in essence what we are left with is the Court’s natural selection of evidence to fit its own narrow, limited understanding of the nature and effect of racial discrimination as we know it today.  

The majority also fails to address just how an employer is to prove it was going to unlawfully discriminate against a candidate in a disparate impact situation BEFORE actually discriminating against them.  Justice O’Connor noted the peculiarity of this kind of requirement in previous Title VII cases, stating that the only real effect it has is to stymie efforts by employers to proactively address inherent and ingrained workplace discrimination.

The Court’s decision in essence turns a blind eye to the challenge of equalizing access to positions of authority that are often tied directly or indirectly to nepotism.  So why the focus on the decision may be tied more to any implications it has on the nomination of Judge Sotomayor for the Supreme Court, its legacy may well be for its complete lack of understanding of the effects of systemic, ingrained denial of access to power for minorities and women, as that misunderstanding litters this decision.  The city of New Haven presented “substantial evidence” that the test was flawed and that relying on it would have resulted in unlawful discrimination despite the fact that it didn’t need to meet that standard.  The problem was that the majority cannot identify the nuanced evidence of discrimination that comes from the legacy of white preference and access to authority.  

This decision changes really very little in terms of trying to erode systemic employment discrimination.  The bar for proving those claims remains just as high as ever and minorities will continue to face a bench that simply does not accept the fact that the challenge of our time comes from addressing the legacy of minority exclusion from power made possible through overt, though now illegal, discrimination.  One wonders if the city had decided to move forward and enforce the results of the test how the Court would have responded given the nature of the evidence illustrating ingrained systemic discrimination in the fire department.  More likely the result would be the same since any change would require an admission by Justice Roberts and the others in the majority that nepotism can and does function as defacto racial discrimination.

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photo courtesy of txd via Flickr.

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49 comments

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9:31AM PDT on Jul 7, 2009

Think whatever makes your heart pound.

But, do re-read this part of a post I already made:
This letting them pass business has insidiously inffected every aspect of academia & hiring practices.

We have come to assume the person we are talking to has real intelligence just because of a badge or a sheep skin hanging from their office wall.
And, it does not matter if "THEY ARE THIS OR THAT COLOR"......Note I've included other races in this statement as in the original.

What matters is why they got it!!

With a world population of six billion & the U.S. population is 335 million is would be nearly impossible to make everyone "equal" in many different respects, and not just in color quotas........In many different areas socially & economically!!!!!!!!!!

Plant trees for life.....On earth.......

8:52AM PDT on Jul 7, 2009

B.M.
First, your attempts at trying to make yourself appear superior only makes you appear smug. I had no idea I was replying directly to you. My purpose in commenting on any subject matter was to offer an opposing viewpoint. Some of us are so set in our ways and stuck in some vacuum that I now realize it is futile. You did in fact use "911" in a way that trivialize the efforts of not only the "responders" but the citizens as well who lost their lives(Black and White) trying to help "AMERICANS". The flea part was a joke. But I guess you take life too seriously to get it! This will probably be my final comment as some of us will never see anything other than that which our minds are prepared to receive. I wish you all the best. GOD bless us ALL(not just America)!

9:58PM PDT on Jul 6, 2009

The rest from my last comment:


We the American people are paying for all these people
who have earned a degree more so based on the lowering
of academics skills & that does include the fight over
what was on this test for becoming of a higher rank in
the fire fighting company. This is exactly what the
whole argument was about. Lower those test questions so "I"
as a minority can pass & become something I'm not
truly qualified for. The color of my skin & how many
among the ranks is all that matters.

In a life threatening moment this practice of
dumbing down may cost you your life no matter
what color you are.

This letting them pass business has insidiously
inffected every aspect of academia & hiring practices.
We have come to assume the person we are talking to
has real intelligence just because of a badge or a
sheep skin hanging from their office wall.
And, it does not matter if they are this or that color.

What matters is why they got it!!

Plant trees for life......

9:56PM PDT on Jul 6, 2009

Wes.....I could not agree with you more!! You've accessed what is & has been going on all across the country for years now to appease blacks in particular.

Yes, the DUMBING DOWN has brought education to it's kness in America. We don't & can not compete as well academically as other countrys for this reason. This DUMBING DOWN can cost you your life in more ways than one. Not just in fires but just maybe on the operating room table.

I hold an opinion on Michele Obama few will openly agree with. Michele's college degree was based on a thesis of how she was treated for being black. If this is true then how did she earn that degree? Dumbing down. Who paid for her college education? More than likely you & I as taxpayers.

7:15PM PDT on Jul 6, 2009

THe rest of that message which was cut off was capability and personal character ...there are no more important assesments than these.

7:11PM PDT on Jul 6, 2009

This is racial discrimination in the same way that we have in Atlanta, the differences are that here it is not based on test scores, only race. If your are not black you will never be promoted in more than half of our counties . Neither police nor fire fighters have been able to overcome the "color devide". Personally I find discrimination based on race ,color ,or creed despicable and destructive to the country that we are trying to build......and that includes reverse descrimination which leads to arrogant cops instead of civil servants. I think it is time for enough" reverse" case that will turn the tide and begin to create justice and equality for all. By the way in your biased report you failed to mention that one of the people that passed is of Latino heritage.Was he multi-generational, and if so .....so what? One of the things that has occurerd as a part of the changes over the past 30 years is the "DUMBING DOWN " of requirements in schools, this has had the result of increaseing graduation rates of minorities....it has also had the consequence of dropping the performance of ALL ALLL ALLLLLLLLLLL High School and even College graduates. If you think that this has been good for the country .....OR those graduates ....you fail to comprehend what is happening and how far our country will fall as we fail to compete on a global scale!When you teach to the lowest denominator THAT IS WHAT YOU GET ! Let us truly become color blind and promote on the basis of skill ,capabilit

12:58PM PDT on Jul 6, 2009

Here is the 2nd of two private messages Nate C. sent to me:
From:

Nate C.
To:
B. M.

Date: Sunday, July 5, 2009, 2:01 PM
Subject: re: Comment on: When Nepotism Means Discrimination: The Legacy of Ricci

YOU SHOULD BE ASHAMED TO MAR "911" IN SUCH A WAY! THIS HAS ABSOLUTELY NOTHING TO DO WITH IT AND YOU KNOW IT!!!

MAY THE FLEAS OF A THOUSAND CAMELS INFEST YOUR BED!!!

When Nepotism Means Discrimination: The Legacy of Ricci

This kind of comment sent privately is very immature. It does not serve any purpose in this discussion.

If one wants to be accepted with intelligence then by all means write/behave that way.

I stand by all that I've written so far on this subject.

The onther message you sent is merely a copy/paste of my comments on the firemen in the 911 disaster.

My response is the same....Those who got out alive were saved by firemen who were knowledgeable & trained to do a job!!

As for the firemen who passed the test for a higher position then they qualified as opposed to those who were also firemen & failed the test.

The Supreme Court got it right. One does not pass a test based on skin color alone....There has got to be some intelligence attached to whatever your skin color is to pass the test!!!!!!

Plant trees for life.......

7:26AM PDT on Jul 6, 2009

I doubt very seriously that the study material was not available to everyone. It seems to me that the firefighters that did not pass were less experienced than the ones that did pass. This really has nothing to do with color but with experience and 'how much did I study for this test'!!!! A firefighter really should not be promoted if he has less knowledge than the next person. I really don't want someone trying to save me or trying to put out my house thats on fire that doesn't know about the gauges on the truck or doesn't know about the "rules" about puting out a fire. Yes I know there is a wrong way and a right way to put out a fire!!!!! The firefighters that didn't pass should stop complaining and learn their stuff so that they can get promoted in the future.

2:48PM PDT on Jul 5, 2009

Nate....With you like for me to copy/paste the private messages you sent to me & post them here on the thread.......

Openess is a really good policy in any discussion.

Plant trees for life......

2:15PM PDT on Jul 5, 2009

Nate...Please post your comments on the thread regarding this subject as opposed to private messages.

Seems more intelligent to make all comments open & up front to everyone.

Plant trees for life........

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