June 2009

Supreme Court Rules Against New Haven

by lbarber on 06/30/2009

in Judiciary

firefightersYesterday the U.S. Supreme Court ruled in favor of white firefighters and against the city of New Haven in Ricci v DeStefano.

The city had thrown out the results of a promotions test because no blacks scored high enough to qualify for promotions. The city claimed that had it certified the test results, it could have been sued by black firefighters under the disparate impact theory. The District Court granted summary judgment for New Haven, and the Second Circuit (on which Sonia Sotomayor sits) affirmed.

In a 5-4 decision split along party lines, the Supreme Court held that the city violated Title VII of the Civil Rights Act when it discarded the test. The decision was based on an analysis of Title VII’s provisions on disparate treatment and disparate impact. New Haven intentionally discriminated against white firefighters (disparate treatment) to avoid liability for unintentional discrimination against black firefighters (disparate impact). From the syllabus of the 93-page opinion (PDF):

Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.

The answer to the question in this case is no. There must be a “strong basis in evidence” to intentionally discriminate against one group to remedy past discrimination against another (which “affirmative action” purports to do). Only in narrow circumstances could intentional discrimination be justified. As long as an employment test is job-related and consistent with business necessity, or there is no equally valid, less discriminatory alternative available, it is valid.

The court rejected the city’s claim that the test wasn’t job-related and consistent with business necessity, or that there was an equally valid, less discriminatory alternative available. The evidence showed that the city had already watered down the test to make it easier for black test-takers (that’s my expression, not the court’s), painstakingly analyzing the questions to make sure they were relevant to the captain and lieutenant positions. The defendants also failed to show an equally valid, less discriminatory alternative was available. For example, the city’s suggested race-based test result adjustment would have violated Title VII.

Had New Haven certified the results and faced a disparate impact lawsuit, the court notes, the city could have avoided liability by showing the test was job-related and consistent with business practices.

This decision no doubt will result in more disparate treatment lawsuits if an employer tosses out a test for fear of disparate impact lawsuits, as the dissenting Justice Ruth Bader Ginsburg notes. Race makes things complicated, doesn’t it?

The simplest and most objective way to provide jobs and award promotions is to assess candidates on their qualifications and objective scores, regardless of skin color. If it means “disparate impact” for minorities, so be it.

I’ll have more to say once I read the entire opinion. Stay tuned.

{ Comments on this entry are closed }

donutsIn April, Bucknell University deans shut down a racial preferences bake sale that a conservative student group hosted to illustrate the unfair and demeaning nature of lowered admissions standards based on race. The school cited a discrepancy between prices at the time of application and at the time of sale. A technicality.

After almost three months, the issue’s still hot. The story recently was covered by the Associated Press, Wall Street Journal, and the Philadelphia Inquirer. From the Inquirer:

The “affirmative-action bake sale”…was shut down by the administration in April. But it didn’t end there…Bucknell president Brian C. Mitchell has received about 100 letters, e-mails, and phone calls protesting the administration’s response.

The controversy at Bucknell – a 3,500-student liberal arts university in Lewisburg, Pa., about 75 minutes north of the state capital – is not unique.

College campuses across the country frequently must deal with delicate issues of free speech, political posturing, and race relations.

Affirmative-action bake sales, usually held by conservative groups, have been cropping up on campuses for years, much to the chagrin of many administrators – although Kutztown University a few years ago let one go on and used it as a “teachable moment.”

The Foundation for Individual Rights in Education (FIRE) became involved after the school shut down the bake sale. The organization successfully defended the free speech rights of student groups who held similar demonstrations at the College of William and Mary, Northeastern Illinois University, DePaul University, the University of California at Irvine, and the University of Colorado at Boulder. FIRE is on fire. Keep up the good work.

{ Comments on this entry are closed }

Racial Preferences in Service Academies

by lbarber on 06/23/2009

in General

The Center for Equal Opportunity (CEO) published a 20-page study (PDF) titled, “Racial, Ethnic and Gender Preferences in Admissions to the U.S. Military Academy and the U.S. Naval Academy.” Among other things, the authors found that both service academies lower standards for black admittees, and the academic qualifications gap between blacks and whites is “substantial.”

The gap between Army admittees is smaller than the Navy’s gap, and the one between whites and Hispanics is smaller. The study concludes that Hispanics don’t benefit from preferences in the Army’s admissions, and there’s no evidence that Asians receive preferences at either academy.

CEO chart“In fact, there is evidence that the Asian applicants with the same academic qualifications find it somewhat more difficult to obtain admission than do their white counterparts at both academies.”

According to the report, the tougher the school’s standards, the more it uses race preferences. No surprises there.

In a section titled, “Computing the Odds of Admission,” the study shows that the odds of black-to-white admissions is 4.44 to 1, Hispanic-to-white odds 3.32 to 1, and Asian-to-white odds .67 to 1.2.

“[W]e find preferences in favor of blacks at both academies, preferences in favor of Hispanics at Navy but not at Army, and preferences against Asians at both academies. We find that the odds ratios for blacks and Hispanics relative to whites are significantly greater at the U.S. Naval Academy than at the U.S. Military Academy.”

The implications of admitting students with much lower qualifications are far-reaching. As the study notes, these students will have a more difficult time academically and graduate at lower rates.

Whites and Asians with superior credentials are rejected in favor of less qualified blacks.

“At the Naval Academy, 131 Asian rejectees (41 percent) and 2,640 white rejectees (42 percent) have both math and verbal SATs equal to or higher than the black admittee math and verbal SAT medians. There are 69 Asians (50 percent) and 1,232 whites (25 percent) rejected by the U.S. Naval Academy who attained a class rank equal or better to the rank of the black admittee median.”

{ Comments on this entry are closed }

The city of Milwaukee, Wisconsin, will spend $350,000 figuring out how to award government contracts based on race and sex.

According to the Milwaukee Journal Sentinel, there’s a disparity in government contract awards between minority-owned businesses and the rest. And as we’ve been told thousands of times, disparities equal racism.

The city had utilized racial-neutral contracting, but a 2007 study found that it “underuses” minority-owned businesses in government contracting. “The city-sponsored study could provide a legal basis to fend off challenges if it confirms disparities and the city returns to a race-conscious program.”

The city assumes black-owned businesses should represent a certain percentage of government contracts. Former mayor Marvin Pratt said, “Hopefully, we can show statistically that we can have a race-based ordinance.”

But Mr. Pratt, why must the city color-code contracts? Perhaps streamlining the process would benefit black-owned businesses and help them compete without resorting to race-based decisions.

Is there a race-neutral way to help black-owned businesses? Streamlining and simplifying the contracting process probably would help such businesses. But the changes also would benefit the other businesses…unless they’re limited only to so-called minority-owned businesses, and that’s discriminatory. Whether you’re for or against “affirmative action,” doesn’t this reek of unfairness?

{ Comments on this entry are closed }

cashQuota advocates are hoping the economic downturn stimulates more than just federal funding. They’re hoping to increase set-aside contracts.

The Federal Highway Administration recently approved the California Department of Transportation’s (Caltrans) racial quota plan. The reason? What else…money. The state’s so-called Disadvantaged Business Enterprise program saw a drop in minority business participation related to the economy. Caltrans convinced the feds it needed to set racial quotas to reverse the decline in light of new stimulus funding headed to the state.

Apparently the idea sounds good enough to Minneapolis. Set to receive about $4 million in federal stimulus money, Minneapolis is ready to divvy up the racial spoils. Director of economic policy and development Cathy Polasky said, “I think we always go above and beyond what the federal mandate is, so we will be looking to encourage both local hiring and using the workforce agreements we’ve used in the past to encourage hiring of women and minorities,” she said. (Source)

For the uninitiated, “workforce agreements” is a euphemism for racial quotas.

James Frisco, president of the National Association of Minority Contractors’ local chapter, hopes the government sets aside a quarter of the energy-related contracts for minority-owned businesses.

Awarding contracts to the lowest bidder would seem to eliminate the risk of racial or sex discrimination, but some minority contractors insist on blaming racism for losing out. Unfortunately, this way of thinking is generationally entrenched. With the federal government tacitly agreeing with such attitudes, it will continue for generations more.

{ Comments on this entry are closed }

Sharon Browne on Voting Rights Case

June 17, 2009

The Pacific Legal Foundation‘s Sharon Browne talked about the Voting Rights case presently before the U.S Supreme Court on a Federalist Society podcast. Background: Decades ago, certain jurisdictions tried to keep blacks away from the polls. The infamous poll tax was one method. Over 40 years ago, Congress enacted a law (known as Section 5) [...]

Read the full article →

Ward Connerly on Asian Discrimination at UC

June 16, 2009

Asian groups have complained that the University of California’s (UC) recent admissions changes will negatively impact students of Asian descent. These students account for 40 percent of all undergraduates at Los Angeles, 43 percent at Berkeley, 50 percent at San Diego, and 54 percent at Irvine. Americans of Asian descent account for about 12 percent [...]

Read the full article →

California Supreme Court Rejects Berkeley Challenge

June 16, 2009

In March, California’s First District Court of Appeal ruled that Berkeley Unified School District’s student assignment plan, which takes race into account, does not violate California’s ban on racial preferences. The court concluded that Berkeley’s assignment plan “does not show partiality, prejudice, or preference to any student on the basis of that student’s race. All [...]

Read the full article →

Pacific Legal Foundation Sues Caltrans

June 12, 2009

In April, we blogged about the California Department of Transportation’s (Caltrans) new hiring plan that takes race into account in public contracting. The Federal Highway Administration approved the race-based plan on diversity grounds. Yesterday, the Pacific Legal Foundation (PLE) filed suit against Caltrans on behalf of a contractor. The agency set aside 6.75 percent of [...]

Read the full article →

Shelby Steele on Post-Racialism

June 10, 2009

The indispensable Shelby Steele calls Barack Obama on his contradictory “post-racial” rhetoric and his penchant to play identity politics. He once called Obama’s post-racialism delusional. “Barack Obama seduced whites with a vision of their racial innocence precisely to coerce them into acting out of a racial motivation,” Steele wrote. Chilling, but true. In his latest [...]

Related Posts with Thumbnails
Read the full article →