RENEE MONTAGNE, host:
Race, testing and job promotions are front and center at the U.S. Supreme Court today. The case originated at the fire department in New Haven, Connecticut, and it involves tests that it gave as a way of deciding promotions. Among the questions facing the justices: Just what is a job-related test, and what's the best for a city to evaluate applicants for leadership positions?
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: This is a case about testing, and it's a bit of a Rorschach test itself, viewed from the eye of the beholder. To the white firefighters in New Haven, who were on the verge of winning all of almost all of the promotions, they had studied long hours, had scored highest fair and square, and if they were denied, it was because of the color of their skin.
To the black and Hispanic firefighters, the test was discriminatory because an equally effective but different test aimed at finding good leaders would not have blocked them out entirely. And to the city, the test turned out to be a red flag. The city felt like a teacher, who in good faith gives a math test and all the boys pass and all the girls fail, leaving the test giver to think something must have been wrong with the test.
The story begins in 2003 when the New Haven Fire Department gave an exam for promotions to lieutenant and captain. The scores for Hispanics and for African-Americans ranged from 34 to 59 percent of the scores for whites. And because of the way the promotions were structured, no African-American and only one Hispanic would win 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, or as Acting Corporation Counsel Victor Bolden puts it…
Mr. VICTOR BOLDEN (Acting Corporation Counsel): The measured thing to do is decide not to promote based on that exam.
TOTENBERG: 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.
Ms. KAREN TORRE (Attorney): There's no question that their race and skin color were the driving motivation behind the decision not to promote them.
TOTENBERG: Testing is a complicated business. Some people are particularly good at taking tests, especially certain kinds of tests. Others are not. Certainly, Supreme Court justices are people who have aced tests all of their lives.
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.
That doesn't mean necessarily, though, that the test he took was a properly designed promotional exam.
Dr. KENNETH YUSKO (Specialist in Employment Testing): Typically, a written test has a large amount of what we call adverse impact. It really does reduce diversity.
TOTENBERG: Dr. 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. And, he says, experts have learned ways to adjust the testing process without compromising merit.
The law of 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 equally good test that does not.
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 towards 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 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-life equipment or tabletop models, for instance, are used to simulate real-life situations.
In this videotape of a so-called assessment center exercise, an applicant for a promotion is being put through his paces with miniature trucks and model buildings.
(Soundbite of video)
Unidentified Man #1: Did you hear (unintelligible)?
Unidentified Man #2: Fire alarm, second alarm, engine four, engine 12, truck eight, structure fire, 11700 block San Pablo Avenue.
TOTENBERG: Afterwards, the applicant is asked to engage in personnel exercises and to write reports and proposals, just as he would be if he were a captain.
Critics of the New Haven test say that relying too much on multiple-choice tests and structured oral exams can produce officers who are, quote, "book smart and street dumb."
Karen 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 applicants who studied hardest got the highest marks.
Chris Meade, who represents the city of New Haven, will tell the justices today that the city had plenty of reason in the end to think its test had problems. And knowing that, it had a duty to, in essence, redo the process, even if that meant disappointing a lot of people.
Mr. CHRIS MEADE (Attorney): 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. 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.
TOTENBERG: Karen Torre responds that this is all subterfuge. Suppose we were talking about someplace in Mississippi, she says, and the top scorers for a local police department were all African-American?
Ms. TORRE: If you were to flip the scenario, and they're about to fill the vacancies until someone in city 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.
TOTENBERG: The Supreme Court of late has itself been deeply divided by the politics of race. Chief Justice John Roberts has repeatedly expressed overt hostility to what he has called the sordid business of divvying us up by race.
There's 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 nomination by President Obama to the Supreme Court should a vacancy occur. And conservative bloggers are using the occasion of this case to go after her big time.
Nina Totenberg, NPR News, Washington.