Civil Rights v. Civil Service
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From the New York Times:

Trial by Firefighters by Lani Guinier and Susan Sturm


... But the Supreme Court’s 5-to-4 decision last month — that New Haven should not have scrapped the test — perpetuates profound misconceptions about the capacity of paper-and-pencil tests to gauge a person’s potential on the job. Exams like the one the New Haven firefighters took are neither designed nor administered to identify the employees most qualified for promotion. And Ms. Torre’s identity-politics sloganeering diverts attention from what we need most: a clear-eyed reassessment of our blind faith in entrenched testing regimes.

New Haven used a multiple-choice test to measure its firefighters’ retention of information from national firefighting textbooks and study guides. Civil service tests like these do not identify people who are best suited for leadership positions.

This one sentence is the most interesting part of the op-ed: Sturm und Guinier give away the hushed up fact that "civil rights" — as currently understood by, say, Sonia Sotomayor—is an assault on America's once proud tradition of civil service reforms.

As you'll recall, when a disappointed government job-seeker assassinated President James Garfield, elevating the Republican ringmaster of the spoils system, Chester Arthur, to the White House, a national outcry against the politicization of lower level government jobs forced Arthur to sign a major Civil Service bill.

Objective written tests for would-be government employees originated in Imperial China, and the idea was transmitted to Europe by early Jesuit missionaries, such as the great Matteo Ricci, who were impressed by how much better China was administered than their own countries. The Chinese tests were not seemingly all that "job-related" — they consisted of questions requiring elegant essays on the Confucian classics, with bonus points for artistic calligraphy. That doesn't, at first glance, seem to have much to do with, say, keeping the Grand Canal dredged and open to shipping. But, of course, they were tests of IQ, literacy, and diligence, which predicts a lot more about job performance than, say, who you know.

Civil service testing in the U.S. consistently improved in the 20th Century, with the PACE federal civil service test introduced in the mid-1970s being a masterpiece of state of the art social science.

Objective civil service benefited blacks in the first half of the 20th Century, with the heart of the black middle class settling in Washington D.C. because they could get federal jobs by passing blind-graded written tests.

However, as minority political power grew, minorities stopped wanting blind-graded testing extended to fight bigotry and instead wanted it rolled back to benefit themselves over more qualified job applicants. Thus, in January 1981, the outgoing Carter Administration signed a consent decree in the Luevano discrimination case junking PACE, and promising that the federal government would replace it in the future with a test that would be both predictively valid and have much less disparate impact. Of course, 28 years later, the federal government, despite its vast resources, has never been able to come up with that mythical replacement test. So, federal hiring has been based ever since on a hodge-podge of evaluative techniques, with unfortunate consequences for the competence of the federal government.

The most important skills of any fire department lieutenant or captain are steady command presence, sound judgment and the ability to make life-or-death decisions under pressure. In a city that is nearly 60 percent black and Latino, the ability to promote cross-racial harmony under stress is also crucial.

I dunno. I kind of think that knowing what the hell you are doing has something to do with leadership. And, how, exactly does promoting minorities who know less about what they are doing into leadership positions over whites promote "cross-racial harmony under stress"?

Look, I think a reasonable argument could be asserted that police jobs are so inherently political (as the etymological roots suggest) in terms of interviewing suspects and witnesses and the like that a racial quota system might make, sometimes, police departments more effective. That's a much, much harder argument to make plausible for fire departments, however, since fires don't have race.

Fire departments, like most government agencies, are monopolies, so they aren't inherently incentivized by market competition to hire the most effective managers and employees. Thus, strict civil service rules have been developed to produce objective competition for jobs. The diversicrats like Guinier and Sotomayor hate blind-graded competitions, precisely because they are honest and fair.

These skills are not well measured by tests that reward memorization and ask irrelevant questions like whether it is best to approach a particular emergency from uptown or downtown even when the city isn't oriented that way.

Jeez, this uptown / downtown question is going to be the Regatta Question of the next three decades, isn't it? Instead of calling these kind of specious talking points "folklore," we should call them "elitelore."

As far as I can see from this essay, "uptown/downtown" is the entire factual content of their critique of the New Haven test.

The Civil Service Board in New Haven declined to certify the test not only because of concerns about difference in scores between black and white firefighters but also because it failed to assess qualities essential for firefighting.

C'mon, stop yanking our chains. The city spent a huge amount of money having a good test devised. Read Alito's opinion for the full behind the scenes play by play. The politicians only decided to change the rule after they found out what the score was. That's a violation of Hammurabi 101.

As Justice Ruth Bader Ginsburg noted in her dissent, tests drawn from national textbooks often do not match a city's local firefighting needs.

May I respectfully suggest that Ruth Bader Ginsburg doesn't know much about fire department testing. Moreover, she's not interested in learning. Look, New Haven spent $100k having the test customized, so that's wildly misleading. Personally, I suspect a national test would have worked fine.

The point of the customization is to get minority leaders, such as the black guy who is #2 in the NHFD, to agree that the test is fair and valid—which he did. As Alito pointed out, the mayor's staff maneuvered to keep the black deputy chief's opinion of the test's fairness hushed up.

Most American fire departments have abandoned such tests or limited the multiple-choice format to 30 percent or less of an applicant's score. In New Haven, the test still accounted for 60 percent of the score.

Gosh, why do you think so many fire departments have gone over to subjectively graded tests where the judges can see the race of the applicant? In order to racially discriminate. (This really isn't that complicated.)

Compounding the problem, insignificant numerical score differences were used to rank the firefighter candidates.

This is the kind of thing that people say after the game has been played and they know the outcome. "Hey, when our would-be tying baserunner got tagged out by the catcher at home plate with two outs in the 9th inning, he was only 3 inches from scoring, so therefore, there should be like a 3 inch wide penumbra around home plate that counts the same as home plate, so we shouldn't have lost!" Obviously, when you put it that way, you can see the special pleading involved. But people don't think as rigorously about law and public policy as they about baseball, so this kind of sophistry is very appealing to the Who? Whom? crowd.

Guinier rolls on:

What should a city do when its promotion test puts a majority of its population at a disadvantage and is also unlikely to predict essential job performance? People who excel on such a test may expect to be promoted. But testing should not be about allocating prizes to winners. No one has a proprietary right to a particular open job, even if that person worked hard preparing for a test.

There's a basic rule of ballfield fairness that you don't wait to see what the final score is and then change the rules to benefit one side.

When a city replaces a bad test, as New Haven wanted to do, the employees who did well on it do not lose their right to compete for promotions; they merely need to compete according to procedures that actually identify people who advance the mission of saving lives and property – and enhance the department’s reputation in the community for treating all citizens with respect.

All the evidence that it was a "bad test" was ginned up post hoc, after the results were in. The city had spent a lot of money to have a legally defensible test, but, having seen the results, it junked it.

Yet many Americans believe so strongly that tests are fair that they never question the outcomes, especially when those outcomes conform to stereotypes about people of color. Such preconceptions lead to the conclusion that blacks or Latinos who don’t do well must lack individual initiative or ability.

I wonder where those stereotypes come from?

The basic statistical fact is that, relatively on average, blacks and Latinos lack individual initiative and ability. But you can get Watsoned out of your job for pointing that out in public.

As the plaintiff in the New Haven case, Frank Ricci, declared, ”If you work hard, you can succeed in America.” His lawyer went further: White officials who voted for a better assessment system must have been lowering ”the professional standard of competence,” she said, ”for the sake of identity politics.” Yet, in New Haven, no one was promoted instead of the white firefighters.

Jeez, the politically favored folks got "acting" promotions. Can't the NYT afford better dissimulators than these two?

In fact, many fire departments with a history of discrimination, like New Haven’s, still stack the deck in favor of candidates who have relationships to people already in the fire department. Those without $500 for the study materials or a relative or friend from whom they might borrow the books were put at a disadvantage.

Those damn "fire buffs" are racist because they try hard to learn their jobs.

Moreover, it was the firefighters union – which sided with the white firefighters in the Supreme Court – that negotiated the contractual mandate giving disproportionate weight to the multiple-choice test. Those negotiations occurred two decades ago when the leadership of the department was virtually all white.

So, the guys who will be risking their lives under the officers wanted the officers selected by a method that is at least 60% objective and blind-graded. You'll note that the 40% that was oral was rigged by the city in 2003 by having two out of three judges on the panels be minorities.

Taking this into account, after five days of public hearings, Malcolm Webber, one of the white members of the New Haven Civil Service Board, said: ”I’ve heard enough testimony here to give me great doubts about the test itself and the testing – some of the procedures. And I believe we can do better.”

Oh, come on... Please read Justice Alito's account of what really happened in this charade.

Unfortunately, the Supreme Court blessed entrenched testing regimes that do not advance public goals and fell for the story about identity politics run amok. That doesn’t mean, though, that cities need to hire and promote firefighters who are ”book smart” but ”street dumb.”

Fortunately the court left room for municipalities to develop alternative assessments to promote people with the skills needed to advance public safety in a diverse citizenry. Indeed, most American fire departments have already rejected written tests in favor of ”assessment centers” that simulate on-the-job challenges and focus on problem-solving in the relevant context. In so doing, city officials demonstrate that their decisions are wiser than the Supreme Court’s.

In other words, let's use testing methods where the judges can see the race of the applicant, so a proper thumb can be put on the scale.

Lani Guinier, a Harvard law professor, and Susan Sturm, a Columbia law professor, are the authors of ”Who’s Qualified?

The jokes write themselves.

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