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Questioning Ricci: Time To Abandon The EEOC’s Four-Fifths Rule

By Steve Sailer

" Last week, the Ricci reverse discrimination case came up before the Supreme Court for oral questioning. A lawyer representing the New Haven firemen—who are suing the city for refusing to promote them for the last half decade because zero blacks passed the 2003 promotional exams—was grilled by the liberal justices. The Obama Administration’s representative, Deputy Solicitor General Edwin Kneedler , and a lawyer representing the city were roasted by the conservative justices.

New Haven’s attorney claimed that the city had strong evidence for
discarding the test as invalid after finding out the results by race.
But Justice Samuel Alito pointed out the preposterousness of that
claim in a scalding rhetorical question:

"[The city] chose the company that framed the test, and then as soon
as it saw the results, it decided it wasn't going to go forward with
the promotions. The company offered to validate the test. The City
refused to pay for that, even though that was part of its contract
with the company. And all it has is this testimony by a competitor,
Mr. Hornick, who said—who hadn't seen the test, and he said, I could
do a better test—you should make the promotions based on this, but I
could give you—I could draw up a better test, and by the way, here's
my business card if you want to hire me in the future.

“How's that a strong basis in the evidence?" [Oral Argument
transcript, PDF]

Nor was Chief Justice John Roberts impressed by New Haven’s claim that
they had to junk the completed test results because of the danger of
being sued for discrimination against blacks under the “disparate
impact” interpretation of Title VII of the Civil Rights Act. (Which is
now, apparently, more important than the Equal Protection clause of
the 14th Amendment). He said:

"CHIEF JUSTICE ROBERTS: It seems to me an odd argument to say that you
can violate the Constitution because you have to comply with the
statute."

Deputy Solicitor General Ed Kneedler barely got a chance to open his
mouth before Roberts scoffed at the Obama Administration’s sincerity
on race:

"MR. KNEEDLER: Mr. Chief Justice, and may it please the Court: This
Court has long recognized that Title VII prohibits not only
intentional discrimination but acts that are discriminatory in their
operation.

CHIEF JUSTICE ROBERTS: With respect to both blacks and whites,
correct?

MR. KNEEDLER: Yes.

CHIEF JUSTICE ROBERTS: So, can you assure me that the government's
position would be the same if this test—black applicants—firefighters
scored highest on this test in disproportionate numbers, and the City
said we don't like that result, we think there should be more whites
on the fire department, and so we're going to throw the test out? The
government of United States would adopt the same position?"

The last thing Obama wants is for the Supreme Court to issue a
landmark, precedent-setting decision in the Ricci case. The public
finds the courageous fireman plaintiffs to be sympathetic and the
justice of their complaint to be commonsensical. Quotas could easily
be scuppered based on this case.

Accordingly, the Administration is calling for the case to be remanded
all the way back to a jury trial over whether the city acted with
racial malice—i.e., Obama wants Ricci to go away, far away.

In reality, however, Ricci is not an unusual case with particularly
complicated facts. It’s just business as usual in American society.

When President Obama graduated from Harvard Law School, he chose, out
of hundreds of job offers, to work for a Chicago law firm that
specialized in suing over purported discrimination against blacks. For
example, as I point out in America’s Half-Blood Prince: Barack Obama’s
“Story of Race and Inheritance,” Obama made one of his rare court
appearances to accuse Citibank of not giving enough mortgage money to
minorities. The Chicago Sun-Times reported in 2007:

"Obama represented Calvin Roberson in a 1994 lawsuit against Citibank,
charging the bank systematically denied mortgages to African-American
applicants and others from minority neighborhoods." [As Lawyer Obama
Was Strong, Silent Type December 17, 2007 By Abdon M. Pallasch]

(By the way, how’s that working out for us these days?)

Most discrimination cases in recent decades have been based not on
evidence of racial animus, but merely on statistics showing that
minorities didn’t wind up with as many goodies as whites did.

The argument: assuming the races are equal in merit, there must be
discrimination somewhere in the system. It’s simple logic!

Since nobody in public life dares point out the overwhelming social
science evidence that non-Asian minorities tend to be, on average,
less creditworthy, less intelligent, and less law-abiding without
being smeared as a racist, this transparently bogus ploy has enjoyed
massive success over the years.

Obama is committed to preserving the status quo, in which the deck is
rigged against whites by the Equal Employment Opportunity Commission’s
Four-Fifths Rule:

"A selection rate for any race, sex, or ethnic group which is less
than four-fifths (4/5) (or eighty percent) of the rate for the group
with the highest rate will generally be regarded by the Federal
enforcement agencies as evidence of adverse impact, while a greater
than four-fifths rate will generally not be regarded by Federal
enforcement agencies as evidence of adverse impact."

In other words, if 50 percent of whites pass the test, 40 percent or
more of each minority group must pass the test, or the burden of proof
is on the employer to vindicate the selection process. This can be so
expensive and uncertain that many employers just impose hiring and
promotion quotas upon themselves.

This EEOC rule applies to private employers as well as government
employers. You just hear more complaints from firemen because there
are Civil Service laws that are supposed to prevent post-hoc fiddling.
(And, perhaps, because firemen are braver than most people.)

Obama is likely aware that the Four-Fifths Rule is objectively
ridiculous. On none of the major tests used by professional and
graduates schools do blacks come close to scoring at a percentile 80%
as high as whites. On the Graduate Record Exam-Verbal, black college
graduates on average score only three-eighths as well as whites (i.e.,
at what would be the 18th percentile for whites). And that’s their
best showing. On the Medical College Admission Test, blacks only reach
the one-fifth level.

And yet you aren’t supposed to mention these facts in polite society.
As a result, almost nobody thinks about them in a systematic fashion.
That’s why the liberal Justices can get away with acting as if the
Ricci results, in which blacks scored at the three-eighths level on
the Lieutenant’s test (exactly like the GRE-V) and the one-fifth level
on the Captain’s test (exactly like the MCAT) are some anomalous
mystery which a “better test” could somehow make disappear.

In reality, there only two ways to consistently make the racial gap
fit within the EEOC’s Four-Fifths Rule:

Cheat. Don’t rely on written tests where the graders can’t tell the
test-taker’s race. Put most of the weight on oral evaluations, and
make sure to pick judges willing to play ball to have the racial
balance come out right.
In New Haven, the written exam got 60 percent of the weight, and the
oral 40 percent. The city stacked the deck by making the oral exam
judges two-thirds minority, but that wasn’t enough.

Make the test so easy that almost everybody passes. Chicago now gives
tests that 85 percent pass (roughly 90 percent white and 80 percent
black), then chooses randomly from this horde of not utterly
incompetent applicants.

The liberal justices put much effort into asking hypothetical
questions about what might be the far-reaching consequences of ruling
that employers must always act in a racially neutral manner.

But there’s no need for a positive dictate from the Supreme Court
about how employers should act in every situation.

The rotten core of the affirmative action racket in America is the
ridiculous Four-Fifths Rule.

The Supreme Court famously drew upon social science research in Brown
v. Board of Education. Granted, sociologist Kenneth B. Clark’s
experiments with dolls were primitive and turned out to be largely
fallacious. By 2009, however, the scientific evidence relevant to
Ricci is now overwhelming that the EEOC’s Four-Fifths Rule is absurd.

The Court should take the social science record into account and
abolish the Four-Fifths Rule as corrupting and undermining of
competence.

If we must have a quantitative guideline, a One-Fifth Rule, such as we
find with the MCAT, would be far more reasonable.

What the Obama Administration may well be hoping for is 4-1-4 split
decision, as in the notorious 1978 Bakke case, in which the man in the
middle, Lewis Powell, ruled, in effect, that the University of
California could continue using racial quotas as long as it called
them “goals” instead. Justice Anthony Kennedy would be showered with
“strange new respect” and be the toast of Georgetown if he could
finagle a similar outcome.

I suspect Obama would be very happy if Kennedy could, say, assuage the
public’s sense of fair play by giving Frank Ricci a promotion, just as
Allan Bakke was eventually allowed into the UC Davis medical school,
while keeping the overall affirmative action swindle intact for
another generation.

Perhaps, though, Kennedy might surprise us. "

http://www.vdare.com/sailer/090426_ricci.htm