Black Firefighter Sues New Haven
In late June, the Supreme Court ruled in favor of white New Haven firefighters and their claims of racial discrimination. The SCOTUS decision in Ricci v. DeStefano overturned an earlier decision by then-2nd Circuit Judge Sonia Sotomayor.
Given the SCOTUS decision, I should have seen the lawsuit by a black New Haven firefighter coming. It’s such an obvious reaction to SCOTUS that I’m surprised it took this long. Here’s the introduction to the complaint:
The 2003 New Haven fire lieutenant examination had two parts: a multiple-choice written test and an oral exam. Ranking on the eligibility list depended on how the City chose to weight the scores on the two components. The oral exam was a better way to assess candidates’ skills and abilities than the written test and had less disparate impact on African-Americans. Yet the City chose to weight the written test 60 percent and the oral exam 40 percent. This weighting reduced the validity of the overall selection process; it was arbitrarily chosen, without any pretense that it was job related; it was contrary to standard practice among similar public safety agencies, where the norm is to weight the oral component 70 percent; it had a disparate impact on African-American candidates; and it will prevent the plaintiff from being promoted to the rank of lieutenant, even though he is one of the most highly qualified candidates.
Apparently, this plaintiff had the highest score on the oral exam. But once the written exam was factored in, the plaintiff was ranked 24th and not eligible for promotion.
The disparate impact of “cramming,” after the jump.
The crux of the complaint is that the written exam didn’t have anything to do with being a firefighter:
12. In contrast to the oral exam, the written test did not even attempt to measure the skills and abilities required of a fire lieutenant.
Instead, it was all about cramming:
13. In fact, the written test had little or no value in selecting fire department supervisors. Some of its deficiencies were the following: …The test therefore rewarded cramming - the acquisition of identified information in a short period of time for the purpose of regurgitating it once, without regard to whether the regurgitated knowledge is understood or retained. This emphasis on cramming defeated the purpose of the test, which was to determine who would be the best leaders for the department for years or even decades into the future.
Wait a minute, there is a test out there that does not reward “the acquisition of identified information in a short period of time for the purpose of regurgitating it once”? Thank God I never had to take such an abomination! Memorizing information for single-use purposes is my thing.
Of course, I don’t want to be a firefighter, or really anywhere near a fire. I think I’d be a safety liability in a situation that involves burning:
14. The differences between the written test and the oral exam disadvantaged a candidate, like the plaintiff, who had diligently studied and learned all the material taught during years of on-the-job experience and extensive in-service training, compared to one who did little until the run-up to the exam but then memorized the facts that were included in the assigned written materials. Candidates who demonstrated job related skills and abilities were at a disadvantage compared with those who showed less skill and ability as fire lieutenants but were strong on memorization and multiple-choice test-taking skills.15. This effect was real, not hypothetical: most of the top thirteen ranked candidates
(all are white) did not score high on the oral exam, the only portion that attempted to measure the candidates’ job related skills and abilities; yet all or almost all of these candidates will be promoted. Moreover, those appointments will be permanent because there is no probationary period for the position of lieutenant.
Does New Haven have a right to highlight written exam performance over oral examinations, despite its alleged disparate impact towards African-Americans?
Click on the link below to read the full complaint.
Briscoe v. City of New Haven [Lawprofessors Blog]
Earlier: Breaking: SCOTUS Rules In Favor of New Haven Firefighters
(70) 
Comments
First?
SECOND to be FIRST today!
spell check cannot make up for Elie's horrible grammar. Once. Not one.
"But one the written exam was factored in..."
Seriously, Elie?
ONCE the written exam was factored in.
awww, i blew it.
-2 (not 1)
one = once, on a written exam post.
Elie be trolling.
So blacks benefit from racism, then demand more of it. Sounds about right. God forbid that we dont specifically design a test that ensures a black person will get the highest score.
"The differences between the written test and the oral exam disadvantaged a candidate, like the plaintiff, who had diligently studied and learned all the material taught during years of on-the-job experience and extensive in-service training, compared to one who did little until the run-up to the exam but then memorized the facts that were included in the assigned written materials. "
Wait, so not learning the assigned materials makes it unfair?
Elie
You owe me 40 acres and a mule.
-White guy oppressed by black people
Of course, an oral exam can be weighted to favor AA applicants without any written record!
Of course, if the outcome were the same with the oral exam more heavily weighted, the applicant would simply claim that white oral examiners were discriminating against him.
It's all about outcomes - any result that does not place the AA applicant on equal or better footing is necessarily discriminatory, qualification and merit are irrelevant - the #1 qualification for EVERY job is the color of your skin.
Everyone knows that African Americans are much better at having the fire hoses aimed at them opposed to aiming the hoses themselves.
I don't know why they chose to weight the written test over the oral test. I would guess they did it because the written test is objective and the oral test would necessarily be subjectively graded. In essence, the fire department probably thought this would be the fairest way. The irony.
this would never hapen at Widener
All of this race shit sucks. I can't wait until we're all a brownish shade. Maybe we'll get along better.
sounds like a grandfather clause and poll tax to me. (I kid, I kid)
I don't remember reading about this in the original newstories, but did the town decide to weight the written portion more before they found out the results, or after? If they did it before, is the plaintiff arguing that the town knew in advance that whites would score higher on the written portion?
Can't we all just get along?
Just because you claim the test rewarded "cramming" instead of "studying" does not create a compelling argument.
Further, it admits that the white candidates did not score as well on the oral exam. Maybe that is also a disparate impact and should be thrown out.
This crap is absurd. After watching many episodes of Rescue Me I think the only fair test is to make them all chug whiskey while standing up. Last to fall gets the promotion.
the weighting was required by the collective bargaining agreement. If anyone had read the Ricci opinion they would have known that. Also, if this firefighter were actually smart he'd realize that this lawsuit is now going to ripen Alito's argument that disparate impact under the statute is unconstitutional. But seeing how he appears to be illiterate based on his written examination scores, we wouldn't expect him to have read the Ricci opinion.
So, if all of the whites did poorly on the oral exam, shouldn't it be thrown out for disparate impact?
12 = killself
"Does New Haven have a right to highlight written exam performance over oral examinations, despite it’s alleged disparate impact towards African-Americans? "
it's???????
"Does New Haven have a right to highlight written exam performance over oral examinations, despite it’s alleged disparate impact towards African-Americans? "
it's???????
They do a good job of pleading discriminatory impact, but the allegations of discriminatory intent are weak.
Damn, again with the "it's" -- even Lat is tired of this Elie.
It's regretful that the early settlers of this part of the North American continent were too lazy to pick their own cotton, for all this could have been avoided.
25, since when is intent a requirement for disparate impact claims?
Anybody who followed the case knew this issue would eventually be raised.
The test - and specifically, the weighting of the oral vs. written components - is clearly subject to challenge on the grounds that it is arbitrary, and not related to the job function. CSPAN had a good panel discussion that touched upon this issue a few months back.
The real issue is whether the tests, especially the written test, is sufficiently related to the job function.
Can we go like... say one full day without a race baiting Elie? What do you think?
Or wait... how about instead you bait us twice in one day?
Your preoccupation with this kind of crap makes me not want to visit this blog. Keep your race commentary on your personal blog please.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race - Chief Justice Roberts.
Wise words indeed.
15 and 18 are right. Love your brother, as we imply in all of our music. Even if we don't mean it.
"The test therefore rewarded cramming - the acquisition of identified information in a short period of time for the purpose of regurgitating it once, without regard to whether the regurgitated knowledge is understood or retained. This emphasis on cramming defeated the purpose of the test"
SOUNDS LIKE THE BAR EXAM
HEY-OH!
All you proofreading, error-pointing out types think you're hot shit, but you're not. You're tools.
-Not Elie
Elie shows us abuses of the English language I haven't seen since 6th grade English class. Yet, he maintains his post at ABL where his only job is to write. Written exam fail.
@35 affirmative action win.
Agreed 33 -- Maybe the bar exam (and all tests) should be changed to a pop quiz format to prevent any such "cramming."
Is Elie the gay asian dude?
@ 34: people who feel compelled to point out minute grammatical errors at every turn are indeed ridiculous. But it's hard not to get annoyed when you see the same blatant mistakes being made again and again here on this blog. The "it's" for "its" happens so often, for instance, that it can't be a mistake - the author clearly doesn't know the difference. Pervasive basic errors get annoying after a while - it's only fair to point them out.
I think the firefighter might have a cause of action under the Connecticut Good Samaritan Statute. Elie knows what I'm talking about and should e-mail this guy right away.
I know it's above the law and the comments are notoriously ridiculous, but did this really need to resort to racist comments so quickly? Disparate impact is in a crazy state after Ricci, this case was inevitable, and you'd think that a bunch of lawyers would have SOMETHING more substantive or thoughtful to contribute. Also, FOURTIETH!
Isn't the firefighter just better off banging Ricc's wife? I mean, what white women doesn't want some dark meat?
You go my Brutha.
A minor quibble with this language: "...an earlier decision by then-2nd Circuit Judge Sonia Sotomayor." Uh, the decision was handed down by the Second Circuit. Judge Sotomayor joined in the court's decision, but she was not the only one who signed the order. Let's keep it accurate, please. Don't mind the haters; they are all failed 2ls and 3ls who amass great satisfaction at pointing out the grammatical errors of others. It's all they have left in their mean little lives...
The Supreme Court saw this coming and addressed it in its Ricci decision:
"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." (Slip op. at 34.)
The Supreme Court saw this coming and addressed it in its Ricci decision:
"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." (Slip op. at 34.)
Couple of points:
1. The weighting of the oral/written test was part of the collective bargaining agreement the firefighters union had with the city, well before this test was created. The city could not have re-weighted the test based on numbers.
2. As one of the earlier comments said it will come down to whether the test was job related.
3. This is a DI case and thus it doesn't get a jury trial, only a bench trial.
4. Reading the majority SCOTUS opinion it is clear that this guy should lose his suit. The majority opinion ends with saying that it should be clear from the "strong basis in evidence test" that the city should avoid a DI suit.
Thus, the reason that no one has brought a suit like this yet, is because the SCOTUS made it clear that the city would win a DI suit. Although, an opinion by the SCOTUS might only hold a tiny bit of sway with a jury, because this is a DI case tried in front of a judge, it seems unlikely they would go directly in the face of supreme court dicta. Furthermore, it is the standing policy of many (all?) circuits to stick to SCOTUS dicta unless it clearly doesn't apply. Being that this case is specific to the dicta, I can't imagine a district court judge going against this.
This guys best best is if the city is willing to throw him a couple of grand to keep this out of the news.
Want to know a secret? People claim to be oppressed so that they can oppress others.
Elie:
I am sure that you have no personal experiance with this since you went to Harvard Law School where there is no such thing as grades but I need to know your opinion on this.
If a black law student is dominating a class in law school (answering all of the professor's questions in class, perfect answers on practice exams and the like) but does poorly on the final exam, should he sue the school for an unfair grade?
Honestly this case is a waste of time. There are TWO portions to the exam, he did great on one part and bombed the other. He should have just studied harder for the part that counts more. Heck isn't that what they try to teach in Bar Review, an additional point on the essay is equal to getting 4 Multi State questions right or something like that. Admit it Elie, you just love this case because you still carry a chip on your sholder about being black. I would LOVE to debate with you regarding affirmative action.
I'm generally in favor of helping out the little guy, whether white, black, red, blue, purple or polka-dot, given that our society redistributes wealth upward in a great many situations.
That said, 17 has a nice point. It's going to be pretty hard to say that the city knew in advance who it was going to benefit along racial lines. It's also going to be hard to convince any court that it knows exactly what the % should be on firefighter exams. It seems like there should be a fair bit of play in that question, unless there is evidence of actual discrimination. DI suit is going to be hard here.
Comments like 49 make it pretty clear that people don't understand how disparate impact works.
48- your analysis reflects a lack of intelligence.
Elie does not have a chip on his shoulder. He's trying to raise revenue for the blog. Race based posts usually get a lot of comments. I'm glad this so far is not getting much heat -- maybe people have seen through the ruse and are no longer giving Elie a million comments any time he brings up race.
48 your analysis would be great if I hadn't just failed the bar exam because of my MBE score while crushing the essays.
53-
How do you know yuo crushed the essays. The State I took the Bar in (Minn.) does not release your essay scores under any circumstances. You can ask the NCBE for your MBE score, but cant get your essay scores. Just curious, what state did you take the Bar in that allows to get your essay scores?? Not saying you are full of it, it's just of all the states my friends took the bar in, none of them release essay scores.
To all posters, strictly out of curiousity (I took and passed one bar, fuck taking another) what states allow you to see your essay scores??
53 - You didn't crush a fucking thing.
-Latham Secure
It's PUSSY FART time; bitches let 'em RIP!!
47, stop oppressing me and get back to work.
15, that view is anti-human. Western civilization was created by whites. It will only remain as long as there are whites in the world.
54, New Jersey definitely releases essay scores to those who failed. I think they have to be requested as part of asking for the essays to be re-graded though. I'm a little fuzzy on New York, but I think it's the same process.
27, trust me, most people of African descent would gladly revise history so that white people never set foot on the continent.
In fact, I would bet that if white people agreed to give back all the stuff that has been stolen from Africa, most of us would go back tomorrow. We hate you more than you could ever hate us. What's that term we use to describe you? Devil something or other?
60 = white guy named Brad.
Where the goodies at? Gimme gimme.
If black people and their lawyers would spend more time learning how to read and write and less time complaining about the unfairness of their not being able to read and write, they would have less to complain about. Is that the very reason they DON'T learn to read and write? Or is it just some cultural thing that a white woman like me would never understand?
I love when people refer to "test-taking skills." It's a convenient euphemism for "intelligence."
I'll admit my ignorance right off the bat. That said, what if the city adverts to disparate treatment? That is, they just say, "Yeah, we designed the test to discriminate against blacks." That would be an easy way to get the result they want and throw out Ricci, right?
Ricci was about whether throwing out the test later was discriminatory. I can't imagine they treated whether the test itself was discriminatory (since the white firefighters wouldn't touch that argument and the city wouldn't need to rely on it as a defense).
I can't believe the folks running this blog don't mind the disgusting comments here.
66 - free speech be good
63, you might want to follow your own suggestion and work on your poor sentence structure.
Maybe he should take the test repeatedly to see if he can improve his score? If he can't stop bombing the test, then he shouldn't be a firefighter. End of story. Intelligence is intelligence.
I am suprised that the candidate is complaining about racism when scoring highest on the oral exam. I wonder if the written portion is anonymous. I also wonder why, if the fire department was racist, it would allow an African American to score the highest on the oral portion. I mean, the examiners did in fact notice that the candidate was an African American, yes?
In any event, how hard is it to study written materials for this exam anyway? I mean, you go from first to 24th because you can't take a written test? I certainly don't want you supervising the people that are supposed to save my life - you might have the truck turn head down to the wrong address! That does involve reading and writing, yes?