Sotomayor vs. Ricci

Tibor R. Machan

During the Senate Judiciary Committee hearing about whether Judge Sonia Sotomayor should be nominated to the U. S. Supreme Court, a nomination which if approved by the committee's majority would then go to the full Senate for a vote (that the Judge is assured to win), one of the most controversial issues discussed was the Judge's signing on to a very brief ruling affirming a lower court's decision to support a city government's invalidation of a test for firefighters which the majority—all of them "white" though one of Puerto Rican background—had passed. This group who passed the test sued the city for what it did after the test had been administered.

Now I am no expert at the laws governing these kinds of cases but I do give and have given tests to students over my 40 year career as a college professor. And from my experience, which has involved applying standards of fairness in the course of grading my students, it seems clear that there was something amiss about what the city did. Here is how Emily Bazelon of Slate described the background of the case in her May 26, 2009, article:

"In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion." In consequences the city through out the results of the test. And this is what the fire fighters, lead by Ricci, protested in their lawsuit.

Suppose I announce at the start of my class that there will be two papers and a final given to determine what grade a student will receive. When I receive the papers and the test from them, I notice that all the male students who took them did badly, while all the female ones did well. So I decide to scrap these results and devise a new and different method for grading my students.

Those who passed the tests would be fully justified in protesting—unless the test contained some major infelicities, such as grossly incoherent questions—and what I would have done could by no stretch of the imagination be considered sound, valid, or justified.

The Ricci case, as far as I can grasp it, is no different. Maybe a future test could warrant modification but not the one for which the firefighters prepared and which they then took in good faith, believing that the tests will be instrumental in their quest for promotion.

I am puzzled, though, why anyone would find what the city officials of New Haven, Connecticut, and the panel of judges that included Sotomayor did
kosher. If there is any place for concern about fairness, surely it is when tests are administered in cases such as that involving the New Haven firefighters. If the test that was administered was, despite all efforts, flawed and treated the minority group among the firefighters wrongly, the approach that would be required is to revise the test for its future use. This seems to me plainly true and not very complicated.

But it seems that the eagerness to apply nearly any version of affirmative action policies has blinded a lot of folks to all this. Even if one accepts the policy of government mandated affirmative action—which is a highly debatable one for sure in a country that is set on eliminating racial and ethnic criteria from its public policies—the good faith effort shown in New Haven in designing a good test should suffice to have the test results be binding.

The reason this is a key issue in Judge Sotomayor's hearings is that what she did suggests that she may indeed fail to appreciate that the law needs to be color blind or neutral about people's background, ethnicity, and so forth—about matters, in other words, that are irrelevant to a candidate's suitability for a job. The rule of law means just this, namely, what rules is an impartial law, not any judge's preference.