Friday, May 8, 2009

Civil Rights Laws - Harmful of Helpful?: What Ricci v. DeStefano Says About America's Race Problem in 2009

This week, our favorite 9 people in government (aka The Supreme Court) began hearing the racially charged case Ricci v. DeStefano, which has the potential to take everything we ever thought we knew about civil rights laws and turn our understanding on its head. It also raises several questions about race relations that I will submit at the end of this piece. As with any legal matter, let us begin with the facts.


So what the hell happened here? Our journey begins about an hour northeast of New York City in New Haven, Connecticut, a town with a population of approximately 124,000 that is 44% white and 36% black. There, the New Haven Fire Department administered a promotion exam to fill 15 seats for fire fighter lieutenants and captains. The exam tested on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60% of the final score. The second part, which counted for the other 40%, was an oral exam in which fire fighters had to respond to various scenarios. The test was given to 118 people and of those 118, 56 passed. Of those 56, 19 of the top scorers were eligible for the promotion to lieutenant or captain. So far so good.

Normally this would have been where the story ended but the city noticed one small problem: based on these test results, no minorities would have been eligible for lieutenant, and only two Hispanics would have been eligible for captain. Of the 27 black fire fighters who took the test, none of them would have been eligible for either promotion.

Furthermore, at the time of the 2003 test, white people made up:
53% of the city's firefighters
63% percent of lieutenants
86% percent of captains

Black people, on the other hand, made up:
30% percent of the firefighters
22% of lieutenants
4% of captains

The City of New Haven felt that if they allowed the test results to stand it would have been in violation of the Civil Rights Act and the Equal Protection Clause by causing a disparate impact against minority applicants. In other words, they would have taken an already bad situation and made it even worse. Thus, the City (DeStafano) decided to throw out the test and design one that would have less of a disparate impact on minorities. So nobody got promoted.

Meanwhile across town, the white fire fighters who passed the discarded test were understandably none too thrilled about having all of their hard work thrown out the window. One fire fighter in particular, Frank Ricci, (the named plaintiff) had been a firefighter at the New Haven station for 11 years. He was working two jobs at the time and quit his other job in order to make time to study for the test. Since he suffered from dyslexia, he took extra steps to study, paying extra money for audio tapes to help him learn. As a result, Ricci received the 6th highest score on the test that was subsequently thrown out by the city. He and several other white fire fighters then brought suit against the city alleging racial discrimination.

The Civil Rights Act of 1964 and the Equal Protection Clause of the U.S. Constitution

Since this case involves these two laws I thought a brief word might be helpful before we jump into discussion.

The Civil Rights Act of 1964, as the name implies, was signed into law back in '64 originally as a law to help protect minorities against discrimination, and was later expanded to include discrimination against white people as well. Title VII of the Civil Rights Act is probably the most popular section because it deals with employment discrimination. It provides that no person in our country can be fired or passed over for promotion on the basis of race, color, nationality, gender or religion. This law includes both government jobs and the private sector.

The Equal Protection Clause has about 100 years on the Civil Rights Act. It comes from the 14th Amendment of the United States Constitution, and it was one of three amendments (13th, 14th, and 15th) adopted after the Civil War to (i) end slavery, (ii) stop discrimination against people of color, and (iii) give people of color the right to vote. Like the Civil Rights Act, it too was later defined by the Supreme Court to include discrimination against white people as well. Because of the Equal Protection Clause, no person in our country, regardless of their race, can be discriminated against by any state law or government agency.

Disparate Impact Discrimination

The law recognizes that there are 2 major ways in which discrimination takes place: intentionally and unintentionally.

Intentional discrimination ("disparate treatment") is easy to spot. That's where a boss comes in and says something crazy like "all you black people are fired because you are black and I don't like black people!" Life, of course, is rarely ever that simple.

Unintentional discrimination ("disparate impact") is a little harder to spot. That's where policies, practices, or rules that are set up, that don't mention the word "race" anywhere in their text, still end up producing different results for people of different races. It is notable to observe that policies that do this are not automatically considered illegal - rather, they become illegal in a court of law if the employer can't come up with a legitimate, non-race based reason for the policy.


This case is loaded with issues. I submit the following ones off the top of my head for consideration. Feel free to tackle any or all:

1. Given the disparate racial make up of the fire dept officers and test results, AND given that on most standardized tests, regardless of the subject, blacks score lower than whites, did the promotion exam really have a disparate impact against black fire fighters?

2. By merely throwing the test out and not promoting anybody (in other words, not taking any action), did the City of New Haven really discriminate, intentionally or unintentionally, against the white fire fighters who passed the exam?

3. Do minorities and women still need legal protection from discrimination in 2009?

4. Given the state of American race relations in 2009, do these laws cause more harm than good for our country?

and lastly

5. Which side will the Supreme Court support here?
blog comments powered by Disqus