Archive for Judiciary
Just when you thought it was safe to go back in the water…
The austere and backward-thinking Coalition to Defend Affirmative Action, Integration, and Immigration Rights By Any Means Necessary (BAMN) is determined to overturn a race-neutral law and put government discrimination and preferences back on the books.
The Chronicle of Higher Education reports that BAMN filed suit this week challenging—again—Proposition 209, which barred government discrimination and preferences in California.
BAMN contends that racial minorities have a constitutional right to preferential treatment, and says Prop. 209 “promised a ‘color-blind’ Constitution. But this was and is a lie…[It] has created a racial caste system in which the state’s most prestigious schools train mostly white students and students from some Asian backgrounds while admitting Latina/o, black and Native American students at only a third of their presence among the high school graduates of the state.”
Did BAMN’s lawyers really think “color blind” meant “equality of outcome”? Any reasonable person knows there’s no such thing. A color blind government policy removes discrimination and preferences. A color blind government policy keeps race and ethnicity out of the equation, a goal civil rights movement participants and supporters fought to reach.
BAMN also asserts that Prop. 209 violates the Equal Protection Clause “by forcing minority students and their supporters to sponsor an onerous and almost certainly futile statewide referendum in order to secure the adoption of lawful affirmative action programs. Every other group, however, retains the right to secure a change in admission policies that are in its members’ interest by a simple majority vote of the Regents or their subordinate bodies.”
Every voter acts in his own best interests. Sometimes, he also acts in the best interests of his group(s). Doing so doesn’t make the individual or group necessarily wrong or the law unconstitutional. People who voted for and against Prop. 209 did so in their best interests. One side lost, and the other side won. Is BAMN arguing that the whole process is unconstitutional, because the minority doesn’t get its way? Isn’t this how the process works? Otherwise, why permit a voting process at all?
BAMN cites Grutter v. Bollinger to support its quest for California to discriminate and prefer based on race. The Supreme Court held that the University of Michigan law school’s use of race in admissions to achieve a “critical mass” of minorities was narrowly tailored to further a compelling interest in “obtaining the educational benefits that flow from” skin deep-only diverse student body. However, the court didn’t compel states to consider race in admissions; states may consider race in admissions. The majority of voters in California do not want their government to consider race.
Incredibly, BAMN says California’s law barring racial discrimination and preferences is akin to Plessy v. Ferguson (1896), which held that states were permitted to enact laws that separated the races, as long as segregated facilities were “equal.”
In Plessy, the government mandated racial discrimination. It set out specifically to keep the races separate. In contrast, Prop. 209 bars the government from such actions. A racially neutral standard won’t ever produce equal outcomes. No law can do that. But the law does assure individuals that their state is not permitted to deny them college admission, a job, or a contract because they’re black, or white, or Asian, or a woman, or a follower of Joseph Smith.
BAMN also invokes Brown v. the Board of Education to bolster its claims, a double shame. The court held that racial segregation denied black children equal protection of the law. States created separate schools for different races. Prop. 209 doesn’t do that. If some schools end up majority one race, it isn’t because the government mandated separate schools. A consequence of a racially neutral law is that a school may end up majority black or white, but not by government mandate. That’s the point. Solving this “problem” shouldn’t be within the government’s purview. The government is restrained from coercing individuals and/or treating them differently based on race.
In hilariously hyperbolic language, BAMN calls California’s race-neutral law a “Tuskegee-like experiment” and implies minority students are “suffering” under the law. That’s the way to lift people up — speak of them in terms of oppressed victims too ignorant to help themselves.
Read the full text of the complaint.
Before I go, I must include this quote from George B. Washington, BAMN’s lead lawyer. He told the Chronicle that his group must overturn the law, because the American Civil Rights Institute was “going to go and play bully boy with minorities in states like Utah and Arizona.” As we mentioned earlier this week, Utah seeks to bar its government from discriminating against and preferring individuals or groups based on race.
Good for Utah and for the doctrine of racial neutrality.
Filed under: Judiciary | |Comments off
Last month, the Department of Justice sued New Jersey and its Civil Service Commission for using an exam that “discriminates” against blacks and Hispanics, because these groups scored “statistically significantly lower” than whites.
Assistant Attorney General Thomas Perez (pictured) said, “This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated. The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”
Speaking at the left-leaning American Constitution Society, Perez said his department has “dusted off the disparate impact theory. If the fact support the use of disparate impact theory, whether it’s in the housing context, the voting context, the employment context, we will use the disparate impact theory because every court that has ruled on this has said that it is permissible to do so.”
The Center for Equal Opportunity’s Roger Clegg writing at NRO’s The Corner points out that during Obama’s recent State of the Union speech, he said his administration “will once again” file suits against civil rights violation and workplace discrimination, implying that the Bush administration didn’t file such suits. If that’s the case, Obama missed a big one. In 2007, Bush’s DOJ sued the New York City Fire Department for discrimination.
Furthermore, “‘the employment discrimination’ that the Obama administration is challenging is not really discrimination at all,” Clegg writes, “it’s the use of written and physical tests that are nondiscriminatory by their terms, in their design, and in their application, but which have a politically incorrect ‘disparate impact’ on this or that racial, ethnic, or gender group.”
Disparate impact creates are a no-win situation, figuratively speaking. Racial disparities in employment tests typically result in discrimination charges, and the employer ends up watering down the test. But the disparity remains. Just short of eliminating tests altogether, which fire and police departments seem reluctant to do, the employer will face discrimination complaints. If the employer tosses test results or adjusts them based on race, he’s in violation of the law.
The solution carries such a high and convoluted burden of proof. The employer must make sure the test is job related, a business necessity, and there are no less discriminatory alternatives for selecting employers.
Filed under: Barack Obama, Judiciary, Roger Clegg | |Comments off
When last we blogged about Youngstown’s (Ohio) two-list hiring practice (one for whites, one for women and minorities) for policemen and firefighters, we mentioned that, to his credit, Mayor Jay Williams wanted the city to convert to one list. The city council was supposed to vote on the matter, but postponed the vote until members received more information.
The council still hasn’t voted on the change. As of this post, race- and sex-based hiring in Youngstown remains official policy.
A local newspaper called The Vindicator editorialized about the issue on Saturday:
“If Youngstown City Council is intent on encouraging the city administration to continue the use of two civil service lists — one for white males and one for minority candidates — the least it should do is appropriate the hundreds of thousands of dollars it is going to need to defend the city against an inevitable lawsuit. And council should resign itself to eventually losing that suit.
This is not even a close call. We cannot imagine a city being foolish enough today to attempt to promote or hire police officers or firefighters using separate eligibility lists that are based on race or gender.”
The editorial cites Dean v. City of Shreveport, a federal case that outlawed similar lists in Shreveport, Louisiana.
“While it is true that the Fifth Circuit does not have jurisdiction over Ohio, there can be no serious doubt that the court’s decision reflects the way the Supreme Court of the United States reads racial discrimination law today. If the city were to hire or promote from separate lists based on race or gender, there is no doubt that a lawsuit would be filed.”
A city attorney worth his salary knows that if Youngstown continues to use intentionally discriminatory hiring practices, there will be legal and expensive consequences. The issue turns on whether the city has a “strong basis in evidence” to believe minorities would sue under disparate impact. (Ricci v. DeStefano). If not, it will face disparate treatment liability from white job candidates.
Filed under: Judiciary | |Comments off
A decade ago, author Shelby Steele wrote about a racial preferences debate between the American Civil Rights Institute’s Ward Connerly and law professor Christopher Edley on C-SPAN. Among other things, Steele lamented over what he called the “disappearance of the black individual.”
During the Q&A portion of the debate, a pro-preferences black Harvard student rose to “challenge” Connerly for opposing lowered standards for blacks. Steele wrote (emphases added):
“Now consider what this Harvard student is called upon by his racial identity to argue in the year 2002. All that is creative and imaginative in him must be rallied to argue the essential weakness of his own people. Only their weakness justifies the racial preferences they receive decades after any trace of anti-black racism in college admissions. The young man must not show faith in the power of his people to overcome against any odds; he must show faith in their inability to overcome without help. As Mr. Connerly points to far less racism and far more freedom and opportunity for blacks, the young man must find a way, against all the mounting facts, to argue that black Americans simply cannot compete without preferences. If his own forebears seized freedom in a long and arduous struggle for civil rights, he must argue that his own generation is unable to compete on paper-and-pencil standardized tests.”
I’m reminded of Steele’s words every time I hear or read about blacks filing lawsuits that claim civil service exams are discriminatory. It’s truly maddening. Instead of being embarrassed by the implication that they can’t be expected to compete against whites on paper-and-pencil tests, they hold their heads high while proclaiming it in public. I don’t get it.
In 2007, the Department of Justice under George W. Bush filed suit against the New York City Fire Department (FDNY) for violating the Civil Rights Act, claiming that two pass-fail written exams and the rank ordering process disparately impacted minorities and weren’t job-related or consistent with business necessity. The Vulcan Society, a fraternal organization of black FDNY firefighters, joined the lawsuit.
Last summer, Judge Nicholas Garaufis ruled that FDNY discriminated against blacks and Hispanics with a recruitment exam used between 1999 and 2007. Last week, the same judge ruled that New York City intentionally discriminated against minorities by continuing to use the exam. (Source)
Download the 107-page FDNY exam from 1999. (PDF).
Mayor Michael Bloomberg defended the city’s use of the “discriminating” tests. “When I came into office, it was right after 9/11, so we used the old test because we had to recruit right away. We didn’t have the luxury of revisiting and starting the process of building a new test base.” (Source)
New York City faces millions in damages, which may or may not include the additional cost of hiring consultants to develop a test racial minorities can pass at rates similar to whites. What would such a test look like? No multiple choice or reading comprehension questions? More pictures? Oral only? Or perhaps the city will drop civil service entrance and promotion exams altogether. It might sound the death knell for disparate impact lawsuits.
But not likely.
Filed under: Judiciary | |Comments off
In 2003, the U.S. Supreme Court held in Grutter v. Bollinger that the University of Michigan law school’s use of race in admissions was narrowly tailored to further a compelling interest in “obtaining the educational benefits that flow from” a skin deep-only diverse student body.
Justice Sandra Day O’Conner, who voted with the majority, wrote that she and her colleagues “expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Six years later, O’Connor says the “25 years” language shouldn’t be construed as a deadline for the end of racial preferences. (Surprise!) Social scientists need to “clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations.” (Source)
What if social scientists prove that so-called educational benefits flow to racial minorities, but not to racial majorities? Under this scenario, would O’Connor and company still believe racial bean counting is constitutional?
I echo Roger Clegg’s sentiment: “I am glad she is no longer on the Supreme Court. [She] “is not a social scientist by training, and the problem with her jurisprudence is that she would too often try to be a social scientist rather than a justice. She tried to make policy rather than interpret laws.”
The Center for Individual Rights’s Terry Pell (pictured) said, “I think the fact Justice O’Connor is doing this reflects the fundamental weakness of the opinion she offered: It failed to offer a principled basis for limiting — or even judging the effectiveness of — these practices.”
Unfortunately, as long as agencies and companies can be sued for “disparate impact,” racial preferences will exist. Until any and all differences between the races disappear, there will be “discrimination” accusations, allegations, and lawsuits. However, Ricci v. DeStefano sends a warning shot to employers who infringe on the rights of individuals in one group for fear of disparate impact lawsuits from another group.
Filed under: Diversity, Judiciary, Roger Clegg | |1 Comment
Aside from eliminating civil service tests altogether, what can be done to lessen the adverse impact such tests have on racial minorities? Should there be more emphasis on preparation, tinkering with the test to “ensure” more or less equal outcomes, or rigging the results? Fewer multiple choice questions and more oral testing?
My view on the issue probably is in the minority among minorities. I believe men and women who seek promotions should bear the responsibility of preparing themselves for the tests and be willing to accept the consequences of failing or not scoring high enough to qualify for promotions. Such a simple, common sense opinion earns one scorn and accusations of naiveté.
The Department of Justice has filed suit against New Jersey, alleging racial discrimination against black and Hispanic police officers. The plaintiff seeks to bar the state from using the test. (Source) Download the 10-page complaint. (PDF)
Barack Obama’s assistant attorney general for the Civil Rights Division of the Justice Department, the same man who advocates sending lesser qualified doctors to predominately minority areas said, “This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated. The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”
What is it about the promotional multiple choice test that “discriminates” against minorities? In the case of Ricci v. DeStefano, the city of New Haven tinkered with the test to lessen the adverse impact it had on minorities before Frank Ricci filed sued, and whatever the city did to the test apparently didn’t work.
Filed under: Judiciary | |1 Comment
Yesterday I blogged about the city of Youngstown, Ohio, hiring people for police officer and firefighter jobs from two separate lists: one for white men and one for minorities and women.
The publication I quoted, Vindy.com, published an editorial about the issue. Mayor Jay Williams wants to change the two-list hiring practice and use one list for everyone who passed the exam. The city council was supposed to vote yesterday whether to approve his request, but wants more information before voting. (Fear of disparate impact lawsuits). The mayor also seeks to hire nine to 11 firefighters from the two lists once more, because some employees recently retired and resigned.
An excerpt of the editorial:
“It is a reflection of changing times that the bifurcated eligibility lists that were the creation of a federal court as a response to what was then viewed as the unconstitutional exclusion of minorities from public employment are now themselves seen as unconstitutional. The dual lists grew out of a time when affirmative action was seen as a reasonable response to the systemic underrepresentation of minorities in public employment. In recent years, the Supreme Court of the United States has turned affirmative action policies on their head, finding that nonminorities — principally white males — were being discriminated against when minority men and women received preferential treatment in matters of educational opportunities, employment and being awarded public contracts.”
The problem with policies designed to remedy the effects past discrimination is that, inevitably, they end up discriminating against whites and non-preferred minorities. It isn’t a matter of hiring practices that negatively impact but don’t intentionally discriminate against blacks, as is the case when minorities disproportionately score too low on a promotions test. It’s a matter of intentional discrimination against whites or non-preferred minorities who did score high enough, but are passed over in the name of skin deep- and preferred minority-only diversity.
The conflict flows from the Civil Rights Act itself. Title VII contains disparate impact and disparate treatment (although the term is not used, disparate treatment means intentional discrimination) provisions. An entity can be liable for both, and complying with one provision may end up violating the other. For instance, in Ricci v. DeStefano, the city of New Haven tried to avoid disparate impact lawsuits and ended up getting sued for disparate treatment.
The Supreme Court waded through arguments and claims and decided, narrowly, that employers may avoid disparate treatment liability if they have a “strong basis in evidence” to believe they would be liable for disparate impact. Talk about pressure.
If blacks disproportionately fail employment or promotions tests, those agencies and companies may face disparate impact liability, despite a genuine effort to diversify the workforce.
Employers have an “out.” If the exam is job related, consistent with business necessity, and if there isn’t an equally valid, less discriminatory test the employer can use, he may escape disparate impact liability…but not the cost of defending such suits.
Should Congress rewrite those provisions of the law? Should employers eliminate exams altogether?
Back to the editorial. Shockingly, the writer suggests minorities themselves bear some responsibility:
“Regardless of how the numbers game plays out, having a diverse public payroll is a legitimate goal. But some of the responsibility for achieving that diversity falls on the minority community itself. Those who value diversity most highly should be pursuing a proactive agenda in which minority candidates for Civil Service jobs are recruited, beginning at an early age in schools and colleges. Tutoring programs and assistance in studying for the tests given prospective police officers and firefighters should be held at community centers and churches, with the assistance of minority employees and retirees from the departments.”
The Center for Equal Opportunity’s Roger Clegg adds in comments:
“Reasonable people can differ about the extent to which qualifications other than test scores ought to be weighed and how. But there is no reason to weigh skin color or national origin — and doing so is not only unfair and divisive, it’s illegal. If the city engages in such discrimination, it is indeed asking for a lawsuit.”
Filed under: Judiciary | |Comments off
Try to follow this. The city of Youngstown, Ohio, hires police officers and firefighters from two separate lists: one for white men and one for minorities and women. Taxpayers are funding their government’s discriminatory practices that apply different standards to groups based on race and sex. (Source)
How do I know the standards are different, therefore, discriminatory? Let’s use common sense. If “all are qualified,” why would the city need to hire one minority or woman from the list for every two white men hired from the list? Are minorities and women seeking jobs as police officers and firefighters less qualified than the white men? If not, why does the city have two separate lists of people, distinguished by race and sex?
It’s called inferring. The numbers usually confirm the inference.
The practice is coming to an end, however. A federal court ruled that such lists used in Shreveport, Louisiana, to hire employees were unconstitutional. According to the article, Youngstown will cease and desist. (See Dean v. City of Shreveport)
Youngstown’s mayor Jay Williams is hoping to hire more firefighters from both lists one more time. “All are qualified,” he said, “and we’ll do this in a constitutional method. We want to maintain our high standard of employees and give consideration to all applicants.”
Mayor Williams may want to glance at Dean v. City of Shreveport before proceeding. Among other things, the court agreed with the plaintiff’s claim that using different cutoff scores for hiring based on race and sex violated Title VII of the Civil Rights Act. “One more time” may be one time too many.
Filed under: Judiciary | |Comments off
While I’m working on an article about Berkeley High School proposing to cut before- and after-school science labs because they benefit white students, I wanted to point you to this story. A group of white teachers is suing the Board of Education in Peoria, Illinois, alleging racial discrimination.
According to the complaint, the board adopted “policies, practices, and plans” to hire more black teachers and staff, and to avoid discrimination lawsuits by black employees and citizens, which lead to discrimination against whites. Examples of the alleged disparate treatment:
White employees were told they didn’t have the skills or competence to teach black children because they’re white; white employees were prevented from attending school functions because they’re white; white employees were reprimanded for the way they dressed and blacks weren’t; (“One black employee regularly wore pajamas to the workplace with no action being taken to correct his attire.”); white employees assaulted by blacks; and white employees allege that black teachers and staff were hired based on race and not competence.
Download the 12-page complaint for details.
Is the board intentionally discriminating against whites to avoid liability for unintentional discrimination against blacks? The Supreme Court addressed the issue in Ricci v. DeStefano. In the context of employment tests, before employers decide to discriminate against one group to avoid disparate impact liability from another, they must have a “strong basis in evidence” to believe they would be liable.
“Fear of litigation alone,” contended the court, “cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
Filed under: Judiciary | |1 Comment
Seven years ago, a group of black employees filed suit alleging the Marine Corps Logistics Base Albany (MCLB) discriminated against them. The story contains no details about the allegations, although it notes the case involved “more than 387,000 documents totaling more than 810,000 pages; interviews of numerous witnesses; extensive written discovery; and depositions of approximately 20 fact and expert witnesses.” (Source)
I’d really like to get a copy of the group’s allegations against the MCLB. Based on the context of the story, it sounds like a case of unintentional discrimination. The court approved a settlement in September, and a final settlement agreement was executed in October. Curiously, the settlement “is not an admission of liability or fault.” Why not? From the article:
“Plaintiffs’ counsel asserted that the merit-staffing process had disparate impact on African-American applicants. The disparate-impact theory of discrimination addresses employment practices that are not intended to discriminate but in fact have a disproportionately adverse effect on a protected minority. Thus disparate-impact claims do not involve the issue of intentional discrimination.”
So, the group claims MCLB’s hiring and training practices had a disparate impact on black employees, and the terms of the settlement no doubt will entail changing hiring and training practices. You don’t have to hold a degree in rocket surgery to guess how these practices will change to eliminate disparate impact. But let’s pretend such a degree is required and take our best guess. Employers may drop standards for everyone (not likely) or assess blacks on a lower standard than everyone else.
If employers choose the latter, they may avoid disparate impact lawsuits, but could face a disparate treatment scenario similar to Ricci v. DeStefano. The U.S. Supreme Court found that New Haven intentionally discriminated against white firefighters to avoid liability for unintentional discrimination against black firefighters.
Filed under: Judiciary | |Comments off
« Previous Entries||
