[hrothgar]

Lobowolf, on Jun 1 2009, 12:42 AM, said:

Interesting case.  I think that one of the most significant parts of the decision is this passage:

"Nor do they* have a viable claim
of disparate impact because the decision to disregard the test
results affected all applicants equally, regardless of race – all
applicants will have to participate in a new test or selection
procedure."

"they" = plaintiffs.

This is nonsense.  The decision to disregard the test results didn't affect "all applicants equally."  It positively affected those who didn't do well, and it negative affected those who did well.  The interesting bridge connection is that it's a real-world case of restricted choice - If the decision was made without knowledge of the results, then it could be argued reasonably that the decision to disregard affected the applicants "regardless of race," but when the decision to disregard is made specifically BECAUSE of the racially disparate results, then of course it doesn't affect them "equally, regardless of race," and the decision was specifically intended NOT to.

I'm not a lawyer and I expect that Ken or Mike are in a much better position to comment on this than me.
However, I don't think that "disparate impact" works they way that you assume:

From what I can tell, disparate impact only applies to a protected class.
"Those who did well" aren't a protected class, therefore the rest of your argument is (pretty much) specious

You probably should avoid throwing around expression like "nonsense" when you're making mistakes this elementary

[Winstonm]

Quote

This is nonsense. The decision to disregard the test results didn't affect "all applicants equally." It positively affected those who didn't do well, and it negative affected those who did well.

If the test was flawed, there cannot be applicants who were negatively or positively affected based on the disregard for the results of that test. It would be similar to a job criteria of having to guess the number of beans in a jar while allowing some candidates to count half the jar before they guess - having that criteria removed - i.e., removal of a faulty criteria - does not penalize those who guessed better but indeed does affect "all applicants equally" by restoration of an equatable level to the playing field.

To claim otherwise is similar to claiming that the arrest for bribery of the one who paid for the job negatively affects that criminal behavior when in fact all it does is allow all candidates to once again equally vie for the open position.

However, if the original test was not flawed, I would agree with your assessment that disregard would be punitive to those who did well.

[Lobowolf]

hrothgar, on May 31 2009, 05:11 PM, said:

Lobowolf, on Jun 1 2009, 12:42 AM, said:

Interesting case.  I think that one of the most significant parts of the decision is this passage:

"Nor do they* have a viable claim
of disparate impact because the decision to disregard the test
results affected all applicants equally, regardless of race – all
applicants will have to participate in a new test or selection
procedure."

"they" = plaintiffs.

This is nonsense.  The decision to disregard the test results didn't affect "all applicants equally."  It positively affected those who didn't do well, and it negative affected those who did well.  The interesting bridge connection is that it's a real-world case of restricted choice - If the decision was made without knowledge of the results, then it could be argued reasonably that the decision to disregard affected the applicants "regardless of race," but when the decision to disregard is made specifically BECAUSE of the racially disparate results, then of course it doesn't affect them "equally, regardless of race," and the decision was specifically intended NOT to.

I'm not a lawyer and I expect that Ken or Mike are in a much better position to comment on this than me.
However, I don't think that "disparate impact" works they way that you assume:

From what I can tell, disparate impact only applies to a protected class. "Those who did well" aren't a protected class, therefore the rest of your argument is (pretty much) specious

You probably should avoid throwing around expression like "nonsense" when you're making mistakes this elementary

I didn't claim (or imply) that my comment was dispositive of the case (the plaintiffs asserted disparate treatment, not disparate impact; the quoted passage was dicta); rather, I was criticizing some of the language used to support it.

The plain statement that the decision "affected everyone equally" is nonsense, and specious. It's like a board being misaligned in one room. At one table, a pair plays 2S making 2 on normal bidding and defense, and at the other table, a pair goes for 1400 against a part-score. But the board gets thrown out, because the same team was N-S in both rooms. Throwing out the board didn't "affect everyone equally" - it was a great break for the team that did poorly. That doesn't mean it was the wrong decision. It means exactly what it says - It didn't "affect everyone equally."

At its most basic level, its not "affecting everyone equally" is most obviously connected to how well people did. However, also equally obviously, "how well people did" is correlated to race. I didn't say, or imply, that for legal purposes the relevant class was "those who did well." Also obvious is that the decision to not certify the results benefited minority applicants. As it was intended to do. As was the reason for the lawsuit.

The relevant classification for legal purposes is race. *A* relevant classification for parsing the quoted language is "those who did well" and "those who did not do well." Those groups were not equally affected, and thus "all applicants" were not equally affected.

Thanks for the freelance critique of my "elementary mistakes" (though I'm not sure you should be "throwing around" such critiques). I'm not a law professor; however, some pretty good ones were quite satisfied with my analyses.

[kenberg]

The following form Kathleen Parker:

"Nevertheless, most criticism has been aimed at perceived racist-sexist remarks from a 2001 diversity speech in which Sotomayor suggested that she, as a Latina, could be more qualified than a white guy. Pause: Don't most women think they're more qualified than most men when it comes to making wise decisions? Kidding, kidding. "

and

"To think, a few days ago, only seven people outside of New Haven, Conn., knew the name Frank Ricci. Today, rumor has it that Tom Cruise is considering playing Ricci as soon as Joe the Plumber writes the script. "

My view on the sexist remark: If that is the worst they can come up with, she is a very careful speaker. Most people have said things that are far dumber.

My view on the Ricci case: The actions of the New Haven council were reprehensible. If the law permits, or worse requires, such action then the law is an ass. Oh, I guess someone already said that. I have no idea whether a legitimate legal case can be made for finding on behalf of the plaintiffs but if not, then there are some laws that need to be rewritten. Either the law is unusually idiotic even by congressional standards or she has a lot to explain. I am betting on the former. But I will stay tuned.

[Lobowolf]

I think the "Douchebag Case" (Doninger v. Niehoff) is more interesting.

[cherdanno]

hanp, on May 31 2009, 02:11 PM, said:

I think 95% of voters do not pay any attention to such questions. Most of those who do will immediately side with the party they were already backing. Republican supporters will read the Limbaugh comment and think it looks racist, and not look further. Democratic supporters will take notice that the quote may be taken out of context and immediately accept that it is. If the situation were the other way around it would be exactly the same.

The few objective readers who are capable of forming their own opinion cannot be charmed by either party and its politics. (of course they can prefer one party over the other, that is somethiing else)

That sounds nice in theory but has little to do with the reality of American politics as cherdanno perceives it.
1. The percentage of voters identifying as Republicans is decreasing. Republicans have to appeal to more than just them.
2. Limbaugh is highly unpopular, except among the self-identified Republicans. Any time Limbaugh's face appears on CNN as the Republican spokesperson, instead of someone who actually makes sense, is a bad time for the Republican party.
3. Equating independents with those "who are capable of forming their own opinion" is a bold statement given polls consistently show self-identified independents don't follow news as closely as others, and are in general less well informed.

[jonottawa]

I disagree with you all. The statement was clearly racist and you'd have to be pretty clueless to miss that. Although, to be fair, I would hope that a wise white man with the richness of my experiences would more often than not reach a better conclusion than a bunch of folks who haven’t lived that life.

As for the political suicide question, who cares? Repugs are evil. Dems are corrupt, self-serving and unprincipled. Yes, one's worse than the other but tweedle dum, tweedle dee, etc.

Now let's get back to discussing important issues like Rafa's tragic loss at Roland Garros.

[hrothgar]

Lobowolf, on Jun 1 2009, 01:57 AM, said:

The plain statement that the decision "affected everyone equally" is nonsense, and specious.  It's like a board being misaligned in one room.  At one table, a pair plays 2S making 2 on normal bidding and defense, and at the other table, a pair goes for 1400 against a part-score.  But the board gets thrown out, because the same team was N-S in both rooms.  Throwing out the board didn't "affect everyone equally" - it was a great break for the team that did poorly.  That doesn't mean it was the wrong decision.  It means exactly what it says - It didn't "affect everyone equally."

At its most basic level, its not "affecting everyone equally" is most obviously connected to how well people did.  However, also equally obviously, "how well people did" is correlated to race.  I didn't say, or imply, that for legal purposes the relevant class was "those who did well."  Also obvious is that the decision to not certify the results benefited minority applicants.  As it was intended to do.  As was the reason for the lawsuit. 

The relevant classification for legal purposes is race.  *A* relevant classification for parsing the quoted language is "those who did well" and "those who did not do well."  Those groups were not equally affected, and thus "all applicants" were not equally affected.

Thanks for the freelance critique of my "elementary mistakes" (though I'm not sure you should be "throwing around" such critiques).  I'm not a law professor; however, some pretty good ones were quite satisfied with my analyses.

So nice that you took the time to forward this to some law professors. Don't suppose that you'd you'd be willing to share the actual correspondence? The way in which one frames these sorts of discussions can have a dramatic impact on the opinons that get rendered...

As for your comments:

I think that you are overgeneralizing.

The original opinion does not state that that the decision would affect everyone equally. Rather, the opinion stated that the plaintiff's could not claim disparate impact "because the decision to disregard the test affected all applicants equally, regardless of race - all applicants will have to participate in a new test of selection process."

I don't think that the two constructions are equivilent; especially in the context of a discussion regarding disparate impact where equally effect has a very specific meaning.

[Lobowolf]

Quote

So nice that you took the time to forward this to some law professors. 

I was actually referring in general to the three years they were paid to critique my analysis. While I am still in contact with some of them, I don't impose upon them to opine on my internet debates. Sorry for the confusion.

Quote

The original opinion does not state that that the decision would affect everyone equally.

Yes, in fact it does. Almost verbatim. It actually says the decision (not to certify the test) DID (not would) affect everyone equally. Which is like saying the decision to throw out the board where one side goes for
-1400 in a partscore affects everyone equally, because they all have to play a replacement hand.

The statement would have more merit if the decision not to certify the test was made before the results were known, e.g. if, for instance, the split between the written and verbal aspects of the test was objected to earlier.

Here, however, it's not even a judgment call -- the decision not to certify the test was made BECAUSE it didn't affect everyone equally, regardless of race. It was made to benefit minority applicants in a zero-sum game (finite number of positions available).

That doesn't imply that it was the wrong decision. You're allowed to make choices that result in disparate impacts. As I believe you noted in one of your posts, for example, a test that resulted in a disparate impact could be certified and relied upon if it was job-related, and if there weren't a viable test that would result in a less discriminatory impact. Additionally, the defendants had the defense that they were attempting to comply with federal law.

The decision did not rely on the excerpt I quoted. The plaintiffs did not claim disparate impact, in the first place, and in the second place, that discussion was secondary to the fact that they did not have a legally protectable interest in the job, as doing well on the test (even scoring the highest on the test) was not a guarantee of being chosen for the position.

The case was flipped on its head from the typical claim in this case, which would have arisen if the test HAD been certified. The disparate impact on the minority applicants would have been a given, the defendants would claim (from the text of the decision, with a fair amount of supporting evidence) that it was a performance related test (i.e. there was a business necessity for using the test to determine to whom to give the jobs), and the discussion would have revolved around whether there was a less discriminatory alternative available.

But to support the decision, you don't have to support every soundbyte offered to bolster it. Obviously, the decision not to certify the test didn't affect everyone equally, and it was never intended to. It was intended to do the opposite.

[PassedOut]

I'm hoping not to read that she has recently paid some back taxes.

[Lobowolf]

awm, on May 31 2009, 02:39 PM, said:

I think there is some room for discussion about her actual decisions. The recent decision about the New Haven firemen seemed very dubious, especially given her previous record on discrimination related cases.

Indeed. Reversed by SCOTUS today on a 5-4 decision. Somewhat interestingly, the decision was written by Kennedy, probably the swing vote. It's short & sweet, but there's at least one concurrence (Scalia) and I'm sure at least one dissent. I'll be looking at all of them, but I haven't read anything but Kennedy's opinion yet.

[luke warm]

reference was made in an earlier post to "disparate impact" defined as "... an unnecessary discriminatory effect on a protected class caused by an employment practice or policy that appears to be nondiscriminatory"

then there's racism
1. a belief or doctrine that inherent differences among the various human races determine cultural or individual achievement, usually involving the idea that one's own race is superior and has the right to rule others.
2. a policy, system of government, etc., based upon or fostering such a doctrine; discrimination.
3. hatred or intolerance of another race or other races.

and discrimination
1. an act or instance of discriminating.
2. treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit: racial and religious intolerance and discrimination.

the only reference i could find to the phrase "discriminatory effect" used in the 'disparate impact' definition above is a part of federal law dealing with voting... in my mind, discrimination is not something that can only be done to a minority or "protected class" - any "treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit" is discriminatory, imo

[kenberg]

The decision naturally was based on law and the way the justices understand the law. I, and probably many others, come at it differently. How should a society function? How should a person be able to get ahead? How should an organization be run?

I have a Ph.D. In the early 60s, I took the "quals" (qualifying exams to move on towards thesis work). I took two language exams, French and German. Some people passed these exams, some failed. I prepared for these exams and passed. Those who failed either dropped out of the program or set out to learn more thoroughly.

New Haven wanted to promote some firefighters into leadership positions. Presumably such leaders should know something, including some matters that require study. They set up an exam, constructed by professionals and vetted by professionals. People put in varying effort into preparing for the exam. Some passed, some failed. To my mind, that should be it. Those who failed are free to work harder the next time an opportunity for promotion arises.

I cannot give a lecture on constitutional law but I see the Court's decision as being in line with common sense about how organizations should be run and how individuals should approach opportunity for advancement. I am sorry that four of the justices saw things differently.

[PassedOut]

kenberg, on Jun 30 2009, 07:58 AM, said:

New Haven wanted to promote some firefighters into leadership positions. Presumably such leaders should know something, including some matters that require study. They set up an exam, constructed by professionals and vetted by professionals. People put in varying effort into preparing for the exam. Some passed, some failed. To my mind, that should be it. Those who failed are free to work harder the next time an opportunity for promotion arises.

If the exam objectively ranked the leadership applicants, I certainly agree with you. But I don't know for sure that it did. If it had been obviously so, I doubt the decision would have been 5-4.

[cherdanno]

For those of you agreeing with SCOTUS here: do you agre with affirmative action in any other situation?

[kenberg]

PassedOut, on Jun 30 2009, 09:17 AM, said:

kenberg, on Jun 30 2009, 07:58 AM, said:

New Haven wanted to promote some firefighters into leadership positions. Presumably such leaders should know something, including some matters that require study. They set up an exam, constructed by professionals and vetted by professionals. People put in varying effort into preparing for the exam. Some passed, some failed. To my mind, that should be it. Those who failed are free to work harder the next time an opportunity for promotion arises.

If the exam objectively ranked the leadership applicants, I certainly agree with you. But I don't know for sure that it did. If it had been obviously so, I doubt the decision would have been 5-4.

During my professional life I have constructed a great many exams. Even in retirement I serve as a vetter for some of the Ph.D. quals that we give. I recently caught a subtle error in an exam that is scheduled for August. We work hard at getting the exams "right" in all senses of "right". Still, there is always room for dispute and disputes occur. If the standard for acceptability of an exam is that no person, regardless of how crazy, can possibly find anything to gripe about, then basically we can no longer give exams.

Errors can happen. We have had very very few outright errors but sometimes we might regret the phrasing of a particular question when we see the issues that unexpectedly come up. Not often, but it happens.

But: As I understand it, no one claimed any specific deficiencies of any sort in the exam, except for the result that no African Americans received a passing score. Apparently the Civil Rights Law treats this as adequate reason, in and of itself, to challenge the exam. Or at least New Haven's lawyers thought it did.

Houses catch on fire. The people who come to put out the fire should be led by people who know what they are doing. While no selection process is unchallengeable, there should be some reason for the challenge that is based on the quality of the exam rather than on the race of the people who passed it. If any such reasons exist, I imagine we would have heard of them.

[kenberg]

cherdanno, on Jun 30 2009, 09:44 AM, said:

For those of you agreeing with SCOTUS here: do you agre with affirmative action in any other situation?

I certainly support massive effort to make sure that this is a land of opportunity for every citizen. I do not mind in the least that some or many of these efforts are designed with the needs of a specific race, an ethnic group, a gender, what have you, in mind. In fact I believe that such focused effort should be made.

Such a general intent as expressed above leaves plenty of opportunity for disagreement over specifics. As with the current case.

[Lobowolf]

PassedOut, on Jun 30 2009, 09:17 AM, said:

If the exam objectively ranked the leadership applicants, I certainly agree with you. But I don't know for sure that it did. If it had been obviously so, I doubt the decision would have been 5-4.

I don't doubt it at all.

[y66]

According to Nate Silver, in his essay Operation Gringo: Can the Republicans Sacrifice the Hispanic Vote and Win the White House?

Quote

Giving up on New Mexico, Nevada and Colorado is a feasible, and perhaps even wise, strategy. But if they don't thread the needle just perfectly, and they make it difficult for themselves to win back Florida, while putting Arizona and perhaps even Texas increasingly into play, their task will become nearly impossible.

[Lobowolf]

kenberg, on Jun 30 2009, 10:47 AM, said:

But: As I understand it, no one claimed any specific deficiencies of any sort in the exam

That'll be the next step. The decision not to certify the results was a preemptive move. Now things will proceed in the more traditional manner of these types of cases - the test results will be certified, and challenged by the underrepresented minorities. Because of the results, there will be a presumption of disparate impact, and then the burden of proof will shift to the city and the analysis will hinge on the business necessity of the test (i.e. how "job-related" it is). Based on the evidence presented in the original case, this should be an easy showing, which will shift the burden back to the (new) plaintiffs, who will have to show that alternatives which met the city's interest (the job-relatedness) would have less of an adverse impact. The whole case will hinge on this analysis, as everything else is pretty straightforward. Since the City didn't want to certify the test results in the first place, though, it's unclear how zealously they'll defend the test.