The Supreme Court on Wednesday evaluates a case involving race, testing and job promotions. A case from the New Haven Fire Department poses the questions: Just what is a job-related test? How should a city evaluate applicants for leadership positions? If a city thinks a test that was used will result in a lawsuit, does it have the right to abort the promotions and order a new test?
In 2003, the New Haven Fire Department in Connecticut gave an exam meant to gauge eligibility for promotions to lieutenant and captain. Scores for Hispanics and for African-Americans ranged from 34 to 59 percent of the scores for whites. Because of the way the promotions were structured, no African-American and only one Hispanic would have won any of the 15 promotions. The question then became whether the Civil Service Board would validate the test results.
After five days of hearings, the board decided the exam was flawed.
"The measured thing to do was to decide not to promote based on that exam," says Acting Corporation Counsel Victor Bolden.
The lawyer for the white firefighters, Karen Torre, says there was nothing measured about the city's action. She says the decision amounted to reverse racial discrimination, pure and simple.
"There's no question that their race and skin color were the driving motivation behind the decision not to promote them," Torre says of the white firefighters.
Testing is a complicated business. Some people are particularly good at taking tests, especially certain kinds of tests. Others are not.
Frank Ricci, the lead plaintiff in this case, is not a naturally gifted test taker. In an affidavit, he said he has dyslexia, that he studied as much as 13 hours a day for the firefighter promotional exam, that he paid someone to read the textbooks onto audiotapes, prepared flashcards and worked with a study group. And he passed.
Still, the test Ricci took was not necessarily a properly designed promotional exam.
Kenneth Yusko, a specialist in employment testing, says psychologists aren't sure why certain written tests produce racial disparities in certain job categories, but they do.
"Typically, a written test has a large amount of what we call adverse impact," Yusko says. "It really does reduce diversity."
Yusko says experts have learned ways to adjust the testing process without compromising merit.
The law surrounding testing is complicated. In 1971, the Supreme Court ruled unanimously that employment tests have to be job-related to ensure that extraneous criteria are not used intentionally or unintentionally to screen out applicants because of their race, gender or ethnicity.
To cite the most obvious example, a height requirement often screens out Hispanics and women. A year after the Supreme Court's ruling, Congress codified that decision, and today the law states that if a test for merit disproportionately knocks one racial or gender group out of the box and some equally good merit test does not, then the employer has to use the latter test.
Indisputably, blacks and Hispanics did poorly on the New Haven promotional test, more poorly than they had in the past. Critics say the test was flawed in part because 60 percent of the grade was weighted toward a multiple-choice written test. A brief submitted by industrial organizational psychologists contends that such weighting is out of line with current practices.
The brief also argues that even New Haven's oral examinations did not use many of the modern techniques relied on in the majority of fire departments today, where real equipment or tabletop models, for instance, are used to simulate real-life situations.
Critics of the New Haven test say relying too much on multiple-choice tests and structured oral exams can produce officers who are "book smart" but "street dumb."
Torre, the lawyer for the white firefighters, responds that the test used by the city was carefully designed by an independent firm, that the oral exams were conducted by panels of predominantly minority examiners from outside the district, and that the takers who studied hardest got the highest marks.
Chris Meade, who represents the city of New Haven, will tell the justices Wednesday that the city had plenty of reason in the end to think its test had problems. Knowing that, it had a duty to retool the process, even if that meant disappointing a lot of people.
"The plaintiffs were not passed over for promotions. They were not denied promotions. No one less qualified has been promoted. In fact, no one has been promoted at all," Meade says. "There was a real question, however, whether the process was fair. ... The plaintiffs in this case may ultimately receive the promotions, but the city has a duty to ensure a process that does not discriminate."
Torre says Meade's response is subterfuge. Suppose we were talking about someplace in Mississippi, she says, where the top scorers for the local police department were all African-American.
"If you were to flip the scenario, and they're about to fill the vacancies until someone in [civil] service says, 'Wait a minute; we have a problem with having that many African-Americans,' I don't think anyone in this country would not find that offensive," Torre says.
The Supreme Court itself has been deeply divided by the politics of race lately. Chief Justice John Roberts has repeatedly expressed overt hostility to what he has called the "sordid business" of "divvying us up by race."
There is even the specter of future confirmation battles hanging over this case. The white firefighters are appealing a decision by a federal appeals court panel. One member of that panel was Judge Sonia Sotomayor, often mentioned as a hot prospect for Supreme Court nomination by President Obama should a vacancy occur. Conservative bloggers are using the occasion of this case to criticize Sotomayor.