New Haven FireFighter Race Discrimination case

It's hard to argue with the facts the plaintiff presents. For a challenge to race-conscious policy making, he was an ideal candidate. However, it is also hard to argue with the fact that you can probably identify good math teachers by written tests, but you can't identify good bouncers by having them do multiple choice tests. Firefighters? It seems to me that a written test alone is insufficient to identify the best firefighters. Firefighting, I'd say, includes a theoretical component: that is, the nature of fires, how to recognize the conditions that create firs etc. This can be properly tested in a written test. But firefighting, like police work, also includes a practical, personal and leadership components, e.g. how you react in an emergency and under pressure, and will men follow you in these circumstances. Multiple choice questions cannot reveal these facets of firefighting at the lieutenant and captain level. Does this mean that the New Haven test should have been thrown out? As a matter of the law as it stood prior to the Supreme Court's ruling, I'd say yes!

Nevertheless, I think the Supreme Court's decision was correct in this sense: it forces employers to think very carefully about their hiring and advancement requirements as they relate to the job. Prior to this, the law allowed employers to simply throw out tests in which minorities did not to well because the law made it very easy to sue for discriminatory testing under Tittle VII. The danger was that the possibility of a lawsuit from a minority candidate might cause an employer to invalidate a test for which non-minority candidates went to great lengths to prepare. Now, however, before invalidating any test, employers have to show a "strong basis in evidence" that they would have lost a racial discrimination lawsuit brought by the minority candidate. While this requirement may make it easier for employers to accept a lack of diversity, it, in my view, remains a useful requirement because minorities can still sue and now non-minorities can as well. This can only make testing fairer. Under the new law, New Haven would probably have had to to have included both a theoretical as well as a practical component in its firefighter promotion tests. And that is as it should have been and as it should be.

More broadly though, the Supreme Court's decision also reflects the increasing pressure Affirmative Action policies in general are under. While I think nobody doubts that in this country there are still many advantages and disadvantages attached to one's race, we nevertheless have elected a black man President. This is progress. So while we are probably not yet ready to discard Affirmative Action, I think Justice Sandra Day-O'Connor had it exactly right in 2003 when she suggested that in about 25 years it will be difficult to defend race-conscious Affirmative Action as it is currently constituted.