Racial Discrimination in Ricci v. DeStefano

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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  1. Avatar Philip H
    Ignored
    says:

    L6 – That a bipartisan bill was passed and signed that addresses such an important issue, tells you everything you need to know about politics in 2020.Report

  2. Avatar Jaybird
    Ignored
    says:

    The Catch-22 is really interesting. Saying that it will be done by “merit”, right there, is one of the mines in the minefield.

    And we can argue all day about what “merit” would mean and whether it exists in the first place and, if it exists, how is it measured and can we really say whether one firefighter is better than another?

    And, of course, the answer is “OF COURSE MERIT FREAKING EXISTS AND OF COURSE WE CAN SAY THAT SOMEONE DOES A JOB WELL AND SOMEONE ELSE DOES A JOB POORLY”.

    It’s when the job doesn’t need to be done that we can wax philosophically about whether it doesn’t need to be done well or whether it matters if it doesn’t need to be done poorly.

    “The tests weren’t good!” might be a good argument. “The tests didn’t measure what we wanted tested!” might be a good argument. “The study materials were withheld from potential students!” is a great argument (though it seems to grant that the test, if studied for, would be a good measure).

    To tie into the phrasing from the other day, there are socially constructed parts of what makes a good fireman.

    But there’s also this thing about putting out fires, investigating fires, and preventing fires.

    And talking about how other cultures, including ours, thought that phlogiston existed is not a good way to turn “putting out fires, investigating fires, and preventing fires” into something as socially constructed as employee management.Report

    • Avatar Jaybird in reply to Jaybird
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      says:

      L4: What is “merit”, anyway? Can we even say if it exists?Report

      • Avatar superdestroyer in reply to Jaybird
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        says:

        AT the extremes, merit is easy to spot. Look at how the Obama Administration was generally staffed by Ivy League graduates who attended private prep schools. Look at how all of the current Supreme Court justices attended one of two law schools.

        It is at the margin that merit begins to have problems.Report

        • Avatar Jaybird in reply to superdestroyer
          Ignored
          says:

          My team members have merit and so it is appropriate to judge them using merit.

          Your team members do not have merit and so it is inappropriate to use merit to judge them. You should, instead, look at the disparate impact that resulted in your team members being chosen disproportionately over my team members.Report

  3. Avatar Oscar Gordon
    Ignored
    says:

    L1 – I agree with RBG with regard to the issue of access to testing materials. Had the city planned better and had the test materials available the day the test was announced, and free for any firefighter in the city, it would have had a different case.Report

    • Avatar Dark Matter in reply to Oscar Gordon
      Ignored
      says:

      Maybe. “First-generation” firefighters don’t have friends who are fire-fighters? 2nd-generation firefighters’ parents took the same test? There are no lower cost study alternatives?

      And this favors the whites?

      This isn’t impossible but it sounds like an effort to assume and/or assert what should be proven.Report

      • Avatar Oscar Gordon in reply to Dark Matter
        Ignored
        says:

        There is a test you want to take for advancement. Study materials for that test are expensive and in short supply and the date of the test is looming, BUT, people with connections/disposable income manage to get access to those materials ahead of others.

        That gives some people a leg up in that they have ability to, and more time to, prepare for the test. That is a problem that has already been proven in other cases, and with simple logic.

        Had the testing company and the city done the basic job of getting a count of how many people wanted to take the test, and then providing study materials at a nominal, or zero, cost to the examinees, then there is no cause for complaint on that front.Report

        • Avatar Dark Matter in reply to Oscar Gordon
          Ignored
          says:

          This would be a lot more believable if there weren’t weasel words in the reasoning. [“These advantages largely favored white candidates.”]

          What does “largely” mean, why are we talking about “candidates” rather than “qualifying scores”, what was the racial break down of the applicants?

          There’s enough room in the description to mean anything from “everyone who got a high score had access to the study guides and from the scores the guide made a huge difference” (although I’d hope if that were the case they’d just say something like that);

          To “most of the people who got high scores didn’t bother with guides because it’s mostly an Experience+IQ test”.

          I’m cynical of the political class wanting to redo a supposedly neutral test only after the outcome is known using weasel worded reasoning.Report

          • Avatar Oscar Gordon in reply to Dark Matter
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            says:

            You are talking past me. Re-read my comments.Report

            • Avatar Dark Matter in reply to Oscar Gordon
              Ignored
              says:

              I’ll rephrase.

              How important are these study materials, how many of the winners used them, how many of the losers didn’t? There is room in what we know for the study guides to be anywhere from absolutely needed, to somewhat useful, to not useful.

              If those guides are dominate in determining who gets what, then it’s weird we’ve got phrases like “largely favored” in the description of the process.

              It is flawed reasoning to claim “this was an effect so it must be the dominating effect so let’s re-do things”. It is especially suspect when the rules were agreed upon before hand and the outcome is politically undesirable.

              Hmm…in an effort to look up the answers to my questions, I found this: https://en.wikipedia.org/wiki/Ricci_v._DeStefano

              The City deliberately, at every step of the way, attempted to make the test minority friendly. They over-sampled minority officers for creating it. Two thirds of their panelists (i.e. the judges giving the oral exam) were minority.

              Reading the wiki, it looks like it was a new test but I don’t see it’s exact creation date.Report

              • Avatar Dark Matter in reply to Dark Matter
                Ignored
                says:

                The total number of people who even suggest unequal access to study materials was two (out of the scores of people involved). This is why we have this weird situation where “old family networks can get you materials” is stated to be a huge advantage on a brand new test.

                That’s the opinion of one person.

                https://supreme.justia.com/cases/federal/us/557/557/Report

              • Avatar Oscar Gordon in reply to Dark Matter
                Ignored
                says:

                I’m not claiming it was dominating, I’m claiming that unequal access to materials is stupid and gave RBG a hook.

                You spend all this time and effort to make the test itself as fair and balanced as you can, then you go and do something stupid like charging a significant sum for the study materials, or not having enough to meet demand.

                I agree with the ruling, I think overall the city made a good faith effort to administer a fair test, with one misstep, and should have certified the results while making sure that next time the study materials are cheaper and better planned for.

                Now, if we revisit this 5 years later and the study materials are still an issue, THEN you have a problem.Report

  4. Avatar Doctor Jay
    Ignored
    says:

    [L7] Every single one of the 11 AG’s that signed on to this suit is Republican. I think it’s particularly significant that the state of WA, home of Microsoft, which operates Bing, isn’t on the list.

    This is the product of AG Barr’s DOJ, a thing which has become of political tool, used to attack enemies.

    And if Google were to face anti-trust action in a way that seems beneficial to me, it would be over online advertising, over which they have a monopoly.

    The claim that they paid Apple to be on IOS is laughable. Everyone pays to play on IOS. There’s nothing unusual about it in the slightest. It’s a big number meant to get people excited, but that’s because folks use it a lot.Report

  5. Avatar Doctor Jay
    Ignored
    says:

    [L3] And wonder of wonders, Democrats don’t trust this court, and don’t think that they would get a fair hearing before it.Report

  6. Avatar Mike Schilling
    Ignored
    says:

    L2/L3: The 4 who wanted to meddle in Pennsylvania’s election cited Bush v. Gore as a precendent.

    L7: And the suit was announces 2 weeks before the election? Pure coincidence.Report

  7. Avatar Chip Daniels
    Ignored
    says:

    L2: At this point, the SCOTUS is begging for another 6 justices.Report

  8. Avatar Aaron David
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    says:

    L2/3 – The idea that 4 justices are down with unpostmarked ballots being counted three days after an election is seriously unreal third-world bullshit.

    I think they need to be impeached, along with the asshats in Penn.Report

    • Avatar Aaron David in reply to Aaron David
      Ignored
      says:

      Here is the stay:

      he Pennsylvania Supreme Court majority acknowledged that there is “no ambiguity regarding the deadline set by the General Assembly”: to be counted, absentee and mail-in ballots “‘must be received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election.’” A.34 (quoting 25 Pa. Stat. § 3150.16(c)). Nonetheless, on a 4-3 vote, the majority ordered “a three-day extension” of that deadline for the imminent general election—and even imposed a remedy that creates a serious likelihood that election officials will count ballots that are cast or mailed after Election Day. A.63. Specifically, the majority required election officials to presume that any ballot received by its judicially extended deadline that lacks an intelligible postmark was “mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day.” A.64. Thus, under the majority’s judicially created presumption, ballots without intelligible postmarks (hereinafter, “non-postmarked ballots”) will be counted even if they are cast or mailed after Election Day, except in the extraordinarily rare case where proof of the untimely casting or mailing can be adduced.

      Even the clowns in PA admit that the law, as created by the legislature is “unambiguous” about the date, and they went and extended it by fiat, and four asshats at the supreme court backed them up with this BS.

      un. fucking. real.Report

    • Avatar Slade the Leveller in reply to Aaron David
      Ignored
      says:

      You know, if the Dem side was the only one pulling shenanigans in this election, I’d have total sympathy with your position. As things stand, however, I have a little difficulty mustering up any.Report

      • Avatar Philip H in reply to Slade the Leveller
        Ignored
        says:

        Ditto, especially when Republican legislatures refuse to take up legislation to address election security issues and/or pandemic related legislation, and then sue a democratic governor who takes matters into their own hands.Report

      • Avatar Aaron David in reply to Slade the Leveller
        Ignored
        says:

        The only things I have seen in this election from the right have been on the lines of cleaning up voter rolls and other patently legal things. Do you have some other examples?

        Because you would think that they would be sued over them if the things they were doing were actually illegal. Certainly nothing as banana republic as this.Report

        • Avatar Philip H in reply to Aaron David
          Ignored
          says:

          I still fail to see how its banana republic to extend voting periods by executive order due to a major pandemic when legislative branches refuse – actively – to do so.

          But you do you.Report

          • Avatar Chip Daniels in reply to Philip H
            Ignored
            says:

            The only consistent logic in Republican electoral issues is unwavering opposition to voter participation.Report

            • Avatar Aaron David in reply to Chip Daniels
              Ignored
              says:

              You could just as easily say that the only consistent logic in Democrat electoral issues is the unwavering support of stuffing the ballot box.

              Now, are we all happy with our raw, inchoate hate?Report

              • Avatar Chip Daniels in reply to Aaron David
                Ignored
                says:

                Yes, nonexistent fraud is the same as actual disenfranchisement.Report

              • Avatar Aaron David in reply to Chip Daniels
                Ignored
                says:

                Same as non-existant disenfranshisement.

                And on and on and on and o…Report

              • Avatar Chip Daniels in reply to Aaron David
                Ignored
                says:

                Do you encounter people who find this persuasive?

                Serious question.Report

              • Avatar Aaron David in reply to Chip Daniels
                Ignored
                says:

                I find it to be a persuasive argument before some and not others.

                Same as downtown.Report

              • Avatar George Turner in reply to Chip Daniels
                Ignored
                says:

                The winning side doesn’t have to convince the winning side that the winning side didn’t cheat. The winning side has to convince the losing side that the winning side didn’t cheat.Report

              • Avatar George Turner in reply to Chip Daniels
                Ignored
                says:

                Except that there are massive examples of the fraud that are going on. In Texas a bunch of party election officials were arrested for running a drive-thru fake-voter scheme where they even had stacks of driver’s licenses for anyone to use.

                One of the elements of any Democracy is that the losing side has to accept that they were defeated in a fair contest. If the contest is rigged, that goes out the window, and the solution can quickly devolve into open warfare.

                The trouble is that killing ten million or so Democrats, though easy, won’t fix the problem, because dead people still vote Democrat. The only solution is to make sure the voting is fair and that the votes are all valid.Report

          • Avatar Aaron David in reply to Philip H
            Ignored
            says:

            It’s not the extension (that is covered by allowing early voting) its counting ballots that come in post-election day with no post mark ie no proof that they were cast before the election.

            As has been summed up:

            It doesn’t matter which party, it’s that these idiots have allowed the election to be cast into doubt if it is close. Not to mention this is the rankest sort of judicial activism, overriding the well-worded law of the elected representatives.

            And by the way, this isn’t executive order. That would be by the governor.Report

            • Avatar George Turner in reply to Aaron David
              Ignored
              says:

              Well I think elections should be decided by which party controls the “official ballot” printing machines. They just keep printing and filling out ballots until their candidate wins. We’ve already had court rulings up there that say even invalid ballots must be counted, so the ballots can all say “Goofy” and “Mickey” and they still count.

              I think what it might come down to is whether Republican private sector companies can print more official ballots per day than Democrat government-regulated, government-run ballot printing operations. Given the vast gap in economic performance between the West and the old Soviet Bloc, I’m betting the Republican can churn out fake ballots faster and cheaper than the Democrats, especially if the fake-ballot-printing companies issue stock and attract lots of private investment, allowing them access to more capital than privately held fake-ballot-printing companies, much less government-run fake-ballot-printing operations, which undoubtedly would have limited work hours and union labor. Once they establish market dominance, voters wouldn’t even matter.Report

        • Avatar greginak in reply to Aaron David
          Ignored
          says:

          Florida voters passed a referendum allowing felons to vote. R’s have repeatedly fought that with a variety of excuses including they have to pay their fines first but they won’t tell them how much they owe.

          R’s in some states have closed a large number of polling stations in predominantly minority areas.Report

  9. Avatar Kazzy
    Ignored
    says:

    Was the pastor held liable for anything? Suing someone for political advocacy is… concerning.Report

  10. Avatar y10nerd
    Ignored
    says:

    Everytime I read this case, I’m struck by the hilarity of it. Of course City Hall was going to be concerned about the test results – African-Americans were a part of DeStefano’s political machine (and not Hispanics). That said, of course the test was written in a bias manner – it’s freaking New Haven. The NHPD and NHFD were one of the few areas of government controlled as a fiefdom by white ethnics and everybody knew that.

    Then there’s the unspoken spectre in the case, which is Yale. And how Yale students have pushed into the city’s politics more aggressively in the last decades compared to the nadir in the 70s and 80s.

    Anyway, I don’t have much to say for the constitutional issues – there is a pickle there. But lol, New Haven.Report

    • Avatar Jaybird in reply to y10nerd
      Ignored
      says:

      I would like to see a bunch of biased tests next to each other.

      This one can be biased in such a way that *THIS* group has an unfair advantage.

      That one, by comparison, can be biased in the other direction entirely. Like, the people in the above group sits down to take it and WHAM they totally get cut off at the knees and other, historically marginalized, groups hit it out of the park.

      (They should make more tests like the latter and make more people take them. I think we’d learn a lot.)Report

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