Why Does The Media Mis-State Sonia Sotomayor's Reverse Discrimination Decision? (William Chirolas)

Curious how the media is telling lies again -- quoting those who know a little about a little and have an axe to grind.

  Someone should mention that an Appeals Court's decision not to hear a case generally does not address the merits of the case, per se, but rather, whether it is within the court's jurisdiction to hear a case, and whether there are any procedural issues from the trial court that deserve to be reviewed.  The conclusion, be it on cable news, from pundits, or even from the National Journal, that the court's decision not to hear the case was somehow about the merits of the case is, as they say in Scotland -- "not proven."

  The New Haven, Conn., independent exam review board held hearings to consider the possibility that the tests were racially biased where a testing company employee (not from IOS -- the test maker) said that the results showed "adverse impact" and that he could design tests with less disparate results and better measuring the jobs’ requirements (others said yes it discriminates by race but not by that much, and a firefighter said it was similar to past exams).

  The fact that "too many" whites did disproportionately well prompted the re-examination of the whole structure of the process, revealing a flawed process. No one is saying that the test results proved the test biased -- only that the results led to an investigation that revealed the process as a whole as a violation of civil rights and this fact was "discovered" by reviewing the results.  The written portion of the test was not geared toward the assessment of leadership skills, and folks raised the question of whether a fill-in-the-bubble exam was really the best way to evaluate whether someone was suited to a leadership position in the fire department.  An oral portion was mainly used for that leadership assessment.

  Anyone care to judge the judges of an oral exam? Why was not job past performance used in the "leadership" evaluation? The written portion focused on matters like the melting point of materials firefighters are likely to find in a burning building.  The kind of thing a fire captain should know before ordering firefighters to place themselves at risk in such a building.  In fact, the company that made the test admitted that some of the items were "irrelevant" in New Haven. One question, for example, asked the test-takers whether fire equipment should be parked "uptown, downtown or underground when arriving at a fire." The question was based on information relevant to New York City firefighters, and was on the exam even though the city of New Haven has no "uptown" or "downtown."

  The district court granted the City’s motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII’s disparate impact prohibition.

  On appeal, the Second Circuit initially affirmed the district court’s opinion summarily but subsequently issued a per curiam opinion that praised the district court for a "thorough, thoughtful, and well-reasoned opinion" and concluded that the City could not be held liable for its failure to certify because it "was simply trying to fulfill its obligations under Title VII." Three days later, the Circuit voted 7-6 to deny rehearing en banc, with all six dissenters signing an opinion that questioned the panel’s judgment and highlighted the issue for the Supreme Court.

  So where did whites get dumped on in this process?  Where did Sonia screw up?

  The only thing I see is that she did is to not rule the issue a big enough deal to have the District Court go back and deal more thoughtfully, more fully, with "reverse racism."

  But the GOP and their media friends will jump all over this, especially once the Supremes reverse the decision -- as I expect them to do -- because "reverse racism" and its problems and legal rules need to be aired more fully.

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  William Chirolas brings 40 years of real-world business experience in local, state, national, and international tax, pensions, and finance to the world of blogging. A graduate of MIT, he calls the Boston area home, except when visiting kids and grandkids.