New Haven Firefighter Originally Hired By Claiming Discrimination
Deserved or not, the biggest political thorn in Sonia Sotomayor's side has been one Frank Ricci of New Haven, CT. Ricci is a firefighter who sued the city claiming reverse discrimination in 2003 after officials there discarded the results of a firefighter's promotion test after the test was revealed to have a disparate impact on blacks and Hispanics.
But flash back, if you will, to January 25, 1995, when, according to the Hartford Courant Ricci was singing the opposite tune: "A decorated firefighter has filed a lawsuit against the city, saying he was not hired because he is dyslexic."
The lawsuit, filed recently in federal court, could shed light on the selection process used by the city, which has been beset with criticism over politics and nepotism.Frank Ricci charges in the lawsuit that the city violated the Americans with Disabilities Act, which prohibits discrimination against people with disabilities.
Ricci, a Wallingford native who now lives in Maryland, was one of 795 candidates who were interviewed for 40 openings. Ricci told interviewers that he has a learning disability, the lawsuit says.
Fire commissioners have said that although Ricci was qualified, many others also were qualified because they passed the Civil Service examination.
Two years later, that case was resolved. "In a confidential settlement, struck two years later, Mr. Ricci withdrew his lawsuit in exchange for a job with the fire department and $11,143 in attorney's fees."
If you were Frank Ricci, you might say something like, "Frank Ricci got a job and somebody who wasn't dyslexic didn't." Remember, this is the same Frank Ricci who took his reverse discrimination suit all the way to the Supreme Court, where lower court rulings against him--including one by Sotomayor's Second Circuit--were overturned.
Ricci will testify against Sotomayor before the Senate Judiciary Committee next week--this despite the fact that his views on jurisprudence seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.
Josh
Matt
Eric
Brian
*snort*!
This isn't so much about Ricci anymore, this is about how tragically silly the staffers for the Republican Senate Judiciary Committee members can make their bosses look. Are we sure there aren't gobs of stealth Dems working as aids to Rep Senators, throwing wrenches into the works at every turn? 'Cause it's starting to seem like this idiocy is too well coordinated and too complete to be something as simple as a Republican mass-implosion...
/tinfoil
July 10, 2009 1:46 PM | Reply | Permalink
If Ricci still testifies next week, this is going to be like teeball for the Dem committee member who decides to use it. Think they'll let the new guy knock it out of the park?
July 10, 2009 1:49 PM | Reply | Permalink
IT'S A TRAP!
As much as I'd like to see Ricci flame-broiled, he's only a minor sideshow. The Reps motivations in bringing him forwards are 1) to show how latte-sipping elitist Democrats don't like hard-working, blue-collar "Real Americans", and 2) to frame the Sotomayor confirmation in this light.
Thank Ricci for attending and for his input. Sympathize with his plight. Be kind and polite.
Then ignore the putz and anything he says.
July 10, 2009 2:07 PM | Reply | Permalink
Amen, amen, amen. Don't take the bait.
(Although, if he swears in with 'so help me doG', anything goes.)
July 10, 2009 8:41 PM | Reply | Permalink
Please don't use the term "flame broiled" when referring to firemen.
July 14, 2009 6:11 PM | Reply | Permalink
Sen. Arlen Specter (D-Pa.) will, of course, like he tore into Anita Hill.
Luckily for New Haven residents, "fire" and "exit" are pretty straightforward words for rescue personnel to figure out.
July 10, 2009 2:45 PM | Reply | Permalink
I know nothing about dyslexia. Our Mayor is dyslexic and apparently has all sorts of tricks he uses to comprehend what he reads and he reads voluminously.
That said, how did Ricci pass the test at issue??? Some accommodation??
July 10, 2009 1:51 PM | Reply | Permalink
There's a long heart-rending story that's a central part of the plaintiff's case--and the majority opinion in the Supreme Court case as well as the dissent in the 2d Circuit en banc opinion about how he courageously took all these extraordinary measures to overcome his handicap to take the test this time.
One wonders if he would have filed another ADA action if he hadn't done better than the minority candidates.
July 10, 2009 2:03 PM | Reply | Permalink
In my case dyslexia causes me to be a relativly slow reader. Each word must be read to make sure it is not misread so scanning is impossible. Consequently writen tests with a time limit are a problem. I'm also a lousey speller.
I compensated by choosing a profession where I never needed to take written tests, read fast or be a good speller.
No doubt this guy thought firefighting would be a job without written tests, fast reading and acurate spelling optional. Makes sense to me but I've never tried it.
July 11, 2009 10:44 AM | Reply | Permalink
Excuse me, the quote says Ricci was qualified. Does that mean he also passed the Civil service exam like the others, but was passed over solely because of his disability?
Doesn't that put him on the same playing field as the other applicants, unlike the current case were applicants that failed the exam were given priority?
In any event, Ricci was able to sue and succeed only because of defects in the law not his character. Don't like it? Too bad. This is what happens when using discrimination as a remedy for discrimination.
July 10, 2009 1:54 PM | Reply | Permalink
It says that Ricci was qualified but that many others were qualified because they passed something Ricci did not.
Sounds to me as if Ricci is a professional victim.
July 10, 2009 2:00 PM | Reply | Permalink
So you see no irony in this at all?
July 10, 2009 2:13 PM | Reply | Permalink
You've got some big misunderstandings here.
First, this line: "Doesn't that put him on the same playing field as the other applicants, unlike the current case were applicants that failed the exam were given priority?"
The applicants who failed the exam in the current case absolutely were not "given priority." The test was thrown out. No one was given priority over anyone else. Ricci sued because he wasn't given priority. Which was a central issue for all but 5 of the judges who heard the case...the circuit opinion and the USSC dissent both make sure to note that Ricci had no right to any promotion, nor any expectation of same.
The other issue is when you say he was "passed over solely because of his disability." We both lack all the facts of the earlier case, but I don't see any indication that was the case. In all likelihood they passed him over simply because they passed over 95% of the applicants.
Oh, and then there's your last paragraph. If there's an intelligible thought in there it certainly escapes me. But I did like this part: "In any event, Ricci was able to sue and succeed only because of defects in the law not his character. Don't like it? Too bad."
More like, "Don't like it? Find 5 conservative activist judges who are willing to rewrite the entirety of Federal employment discrimination law."
July 10, 2009 3:35 PM | Reply | Permalink
Quick correction. I said all but 5 of the judges who heard the case noticed the fact that Ricci had no "right" to a promotion. I guess I let a nice-sounding line get in the way of remembering the facts; obviously I forgot that the district court originally found for Ricci.
Woops.
July 10, 2009 3:52 PM | Reply | Permalink
You were right the first time, hunter. The district court gave summary judgment to the city and dismissed the case. Ricci appealed, and the circuit court (including Sotomayor) affirmed per curiam. The Circuit adopted the district court's analysis as their own opinion. And all of these courts ruled strictly according to precedent, as lower courts are supposed to do when there is a clear rule of decision.
The best part of this nomination -- beyond the idea of a well-qualified latina who has risen from the projects to the highest court in the nation -- is exposing that the wingers' opposition to "activist judges" is just one more lie. Principle means nothing to the right -- it's just about raw power.
July 11, 2009 10:19 AM | Reply | Permalink
Exactly.
Was there ever a more "activist" decision made by a court than _Bush v. Gore_?
How about _Heller_, which wholly misrepresents the legal authority and history on the false "controversy" pushed through the NRA bby the gun industry?
As is typical of right-wingers, they constantly admit what they are about with every accusation against others/finger-pointing away from themselves.
July 13, 2009 2:49 PM | Reply | Permalink
"shooter242" has no idea what the actrual law is, and has no compunctions against selective "recall" of the "facts".
The central problem with the currnet SC is that the 4-5 right wingers ignore the actual law -- as did Rehnquist concerning Section 504 of the Rehabilitiation Act -- in order to reach their prefigured conclusion.
Scalia did it with both _Bush v. Gore_ and _Heller_.
Exactly as they cited _Brown_ -- and had Thomas write the opinion -- while holding that school boards can not integrate schools.
They cite the relevant precedent and law, then gibberish about how they are basing their decision on those, then go on to hold exactly opposite the precedent and law.
July 10, 2009 4:26 PM | Reply | Permalink
When you give an exam people need to pass for a job, they reasonably expect be given priority over people who did not pass.
July 11, 2009 1:15 PM | Reply | Permalink
The city found -- in accordance with the law -- that the TEST was DEFECTIVE. The results of the TEST were thrown out for ALL who took it -- not ONLY for RICCI.
Now look again at the Ricci pattern: He sues the city because not HIRED "because" he's dyslexic. He is hired. He sues the city for discrimination because ALL the test results were thrown out, INCLUDING his.
The relevant law is -- as everyone knows -- intended to remedy the traditional and continuing disadvantaging of minorities. Ricci is NOT a minority; he is a right-winger who thinks it's clever to turn the law on its head.
There is no such thing as "reverse discrimination" EXCEPT in the minds of bigots. There is only discrimination.
July 13, 2009 1:47 PM | Reply | Permalink
You obviously don't know what you're talking about. Which isn't knew -- especially your ranting against the rule of law.
You totally ignore the fact that the test given had a "disparate impact" on minorities. The flaw is in the test, and the LIE in Ricci's "for it before against it" exploitation of anti-discrimination law.
Get it straight. There's discrimination; there is no such thing as "reverse discrimination" -- except in the perfervid law-illiterate racist's mind. It's either discrimination, or it isn.
July 10, 2009 4:19 PM | Reply | Permalink
You say this as if it would be so obvious to identify the supposed 'flaw' asserted to be in the exam after the results came in. You say this without even having seen the supposed flaw in the test to judge for yourself.
July 11, 2009 1:19 PM | Reply | Permalink
No need for me to see it: the court did: those facts were in the original suit/s.
July 13, 2009 2:44 PM | Reply | Permalink
I agree there is no 'reverse discrimination', but there is such thing as using new discrimination to correct for old discrimination.
July 11, 2009 1:21 PM | Reply | Permalink
All Exams discriminate against people who are bad taking exams. If the point of an exam is to determine what you know, and you test badly, then the exam has failed to accurately judge what you know.
On the other hand, real qualifications for a job, i.e. being able to read, are not discriminatory in the same way.
July 13, 2009 12:31 PM | Reply | Permalink
Exactly. Anti-discrimination law concerning disability is nuanced in ways which escpae the blugeon-"minded" bigot who doesn't know the law, and hasn't the sense to know the law before making pronouncements about it.
On one hand, the question is: Is the disabled person able to do the job if given reasonable accomodation. If the answer is yes, then reasonable accomodation must be made.
On the other is "bona fides": Would it be illegal discrimination to refuse to hire an applicant for a bus driving job if the applicant is blind? No: because being able to see is essential to the job of bus driver.
Those with the loudest mouths on issues of discrimination and the legal prohibitions against it -- and the reasonable exemptions -- are those who know the least about any of it.
July 13, 2009 3:01 PM | Reply | Permalink
There is such a thing as establishing remedies for PAST wrongs which CONTINUE in the present.
Stop being a deliberate asshole: the racist right -- and you along with them -- want us all to pretend that the three hundred years of slavery and its legacy -- perpetuated by Jim Crow up until 1964-65, and then reappearing in recent elections -- is "all over now" because voting rights protections and affirmative action have been in effect for 30 years.
When the objections to affirmative action cease it will be time to consider repealing it -- which at that point wouldn't be necessary. That there continues to be hostile opposition to, and LYING about and against, affirmative action, is sufficient proof that it is still needed.
The issue re. Ricci is entrenched privilege/advantage. It is about nepotism -- and white supremacism.
July 13, 2009 2:55 PM | Reply | Permalink
There wouldn't be need for what you mislabel as "new discrimination" if the "old" discrimination didn't exist in the present. That it does exist in the present is made obvious by those who attempt to label the needed remedies as being "new discrimination," while attempting to shove the continuing "old" discrimination into the past.
In short: you're against anti-discrimination laws if it means more competition for you from equals.
July 22, 2009 12:06 PM | Reply | Permalink
Dude, it's like being intolerant of intolerance! It is actually a good thing and only the most cynical would try to spin it as a negative. It does however work wonders for Republican talking points with illiterate bigots.
July 10, 2009 5:14 PM | Reply | Permalink
Exactly.
If there were a law prohibiting lynching, based upon the actual history of lynching, the racists would oppose it because "race-based" -- they pretending not to be racists, and pretending to be against racial discrimination* -- and claim it discriminated against whites because it only protected blacks.
_____
*13th, 14th, and 15th Amendments are also "race-based" -- as was the Civil War they necessitated.
_____
The history, of course, is that blacks are the lynched, and whites are the lynchers. Whites don't need protection from lynching: they are historically the lynchers.
_____
The actual issue is nepotism: the opposition to affirmative action in those contexts is very simple: "My daddy was a cop, I'm a cop, and when I retire my son will get my slot."
And that is the tradition Ricci is defending: the traditional "right" to have a permanent advantage over everyone else. It is quintessentially the position of bigot and bully.
July 13, 2009 2:41 PM | Reply | Permalink
shooter,
Ricci filed a frivilous lawsuit and an activist Supreme Court legislated from the bench and ruled in his favor.
July 10, 2009 7:18 PM | Reply | Permalink
Exactly as they did with chronic loser G. W. Bushit.
July 13, 2009 3:11 PM | Reply | Permalink
As usual, only discrimination against the majority group matters, every other groups, are just sensitive and paranoid, because we KNOW discrimination no longer takes place for minorities. The only group that works hard and is deserving of remedy in the courts are the minority of the majority when THEY are discriminated against.
July 10, 2009 7:50 PM | Reply | Permalink
I'd agree this may help deflate the intended criticism of Sotomayor somewhat. It does deflate Ricci's image.
However, if you look beneath the service, there is a significant difference between the two cases on the question of qualification in hiring. In the 1995 case Ricci qualified by passing an exam, but complained that (questionably) this implied he wasn't hired for an extraneous reason. In the 2003 case, some applicants were given clear priority who had not passed an exam to qualify for the job over applicants who did.
I'm sympathetic to the Sotomayor supporters who want to see this go away, but this new detail about Ricci's background doesn't change the face that this whole mess brings to the surface the ugly, knotty problems -- indeed, the incursion of new injustices -- in trying to remedy past discrimination with new discrimination.
July 11, 2009 1:04 PM | Reply | Permalink
Asshole: the "past" discrimination to which you refer EXISTS IN THE PRESENT. It is revealed, "surprisingly" enough, in the attacks on affirmative action, and the urging of the falsehood "reverse discrimination".
Your brain-dead view would have us believe that 300+ years of slavery and Jim Crow were overcome within a mere 30 years, so such protections are no longer needed.
So long as there is opposition to affirmative action, affirmative action will be needed.
July 13, 2009 3:09 PM | Reply | Permalink
It doesn't seem that Republicans considered the selection of Ricci as a witness all that carefully.
In addition to this lawsuit (which I imagine will be brought to light with a straightforward question), they can no longer prattle on about empathy. The reason for bringing Ricci in was obviously to bring to light the damage done by discrimination (consider the irony in that to begin with!)--in other words, for the public to empathize with Mr. Ricci.
Can't then go on to complain about "empathy".
July 10, 2009 2:06 PM | Reply | Permalink
IOKIYAR
July 10, 2009 2:09 PM | Reply | Permalink
I really don't agree with the view that most of you seem to have here. As to the most recent case, I actually agree in principle with the Supreme Court. The city gave a test that was presumably a standardized one, and not one they dreamed up on their own. Only after the results showed a pass/fail rate that reflected negatively on blacks and hispanics did they decide there must be something wrong with the test. If they saw this, and then went back and found out that in fact the test was flawed, that would be one thing, but they discounted the tests on the basis of fearing a lawsuit.
That certainly cannot be the standard for anything, legally speaking, can it? I think Ricci is justified in suing over this, and also in winning. I don't know why Sotomeyer made the decision she did, but I believe it was a thoughtful one even if I disagree with it. I don't pretend to know the law as she does, of course; I am just thinking of what seems right to me.
There is not enough information about the first incident to know how valid his complaint was, but it does make one wonder, if he passed the civil service test, and VOLUNTEERED that he is dyslexic in the interview, he could have been planting a seed that would allow him to sue if he wasn't hired.
I don't think he will help the Republican's cause when he testifies. There is too much room to put him on the spot. I'm very interested in seeing that hearing. I think they want another Joe the Plumber type. That kind of grandstanding has no place in evaluating a Supreme Court Justice, and I imagine that Mr. Ricci will feel like a fish out of water.
July 10, 2009 2:20 PM | Reply | Permalink
This is exactly why this case doesn't say anything about Sotomayor.
Ricci was right to sue. The district court attempted to make law (not its place) by finding (incorrectly) for Ricci. The appeals court followed precedent (as it should) and struck down the district court's ruling (correctly), leading to an appeal to the USSC which determined that the precedent was wrong (which it was) and re-interpreted the law (which it should) and found for Ricci (correctly), overturning the appeals court.
Everything worked exactly as it should. Everybody (Ricci, Sotomayor, USSC) except the district court did what they are supposed to do. The only thing to see here is the justice system functioning properly.
July 10, 2009 2:42 PM | Reply | Permalink
Idjit: "case law" is made by COURTS. So, yes, the courts ARE to "make law" -- which is different than "legislating from the bench" (see Scalia for the latter practice).
In so doing, they must BOTH follow the law AND fashion a remedy when there isn't a relevant specific remedy already in the law -- whether statute, regulation, or case law.
July 10, 2009 4:31 PM | Reply | Permalink
Closet -- No, the district court dismissed the case, the plaintiffs appealed, and the circuit affirmed the district court. Both lower courts followed the clear precedent that governed the case. Ricci's lawyers probably knew that, unless they hit an activist judge, they'd have to take the case to the supreme court (where there are 5 conservative activists to be had).
July 11, 2009 10:25 AM | Reply | Permalink
Exactly.
But the law-illiterates need to be informed, anyway, that the courts ARE in fact TO "make law" when there is no specific existing remedy.
It is the judges who IGNORE the law in order to reach their PREFERRED result who are the activists.
Those include Rehnquist (see legislative history of the "Civil Rights Restoration Act of 1984/85" for his blatant ignoring of the express text in Sec. 504 of the Rehabilitation Act" in order to preserve and protect PRHOBITED discrimination -- and that on the taxpayers' dime), Scalia (_Bush v. Gore_, _Heller_), and Thomas (_Ricci_).
Another is Robert Bork, who made up law out of thin air in order to repeal The Fairness Doctrine.
July 13, 2009 3:19 PM | Reply | Permalink
They didn't just discount the test on the basis of a lawsuit. Go read the dissent in the Supreme Court case and you'll see that the fact have very little to do with what either the Republicans or the majority said the were.
The city noted the disparate impact and set about trying to find out a) why it happened and b) whether the test they were giving, and counting as 60% of the grade, was measuring anything that relevant to the job qualifications. The city appointed a commission to look into it. That comission that engaged in extensive fact-finding, took hours of testimony from both sides of the issue, called eminent experts and reviewed pages of documents. They determined that what they had was a generic standardized test that deliberately did not test of knowledge of local procedures or conditions but, instead, was basicaly just a "fire facts quiz." Leadership skills, interperonal skills, knowledge of the equipment actually being used by the city and local conditions were not being tested or sufficiently considered.
Worse, they found that because there was a chronic shortage of study materials, firemen who came from families with a long tradition of producing firefighters had a strong advantage because they had access to old study materials months before new study materials were unavailible. Because of past discrimination, the old firefighting families were white while minority firemen were overwhelmingly first generation firefighters.
The trial court found all of this as fact. The Supreme Court majority, which, as a court of review, is supposed to defer to the findings of fact by trial court instead appointed itself a new trial court and basically reviewed the evidence de novo.
July 10, 2009 3:32 PM | Reply | Permalink
The opposition to affirmative action in hiring for such as police and fire is based upon NEPOTISM. As you note, firemen (and policemen) who have for generations passed their slot on to a song or other relative is are the plaintiffs in these cases: they want the preferential corruption preserved.
That's why firemen and police voted for BUSH, even though he was cutting monies to fire and police: they wanted his appointees to the SC to finally find in favor of their "birthright" of nepotism.
July 10, 2009 4:36 PM | Reply | Permalink
Most employment lawsuits against the Boston police and fired departments have a root in reverse discrimination claims, and are usually by second or third generation members of the force. 'My father was a member, his father before him was a member, and therefore it is my birthright to become one', hence court.
July 10, 2009 5:14 PM | Reply | Permalink
Exactly.
July 13, 2009 3:26 PM | Reply | Permalink
NCSteve (formerly). Thanks for the info. That certainly puts a different light on it. I've been reading about this and until I read your comment, I never saw one word about all the effort they made to find out the appropriateness/lack thereof of this test.
Too bad they didn't do it to start with. Anyway, I appreciate the info!
July 10, 2009 6:05 PM | Reply | Permalink
They did do it "to start with" -- as the law REQUIRED.
Drop all the "reverse discrimination" crap, and everything that goes with it: it is a false construct jinned up by white supremacists. You'll recognize who they are because they always talk about PAST wrongs, pretending everything is now hunky dory.
July 13, 2009 3:30 PM | Reply | Permalink
You know, I am pretty well-informed, and I check out plenty of sites, as well as print. NC Steve gave me information I hadn't gotten anywhere, and the truth is that most people probably even got a more biased (towards Ricci) than I have gotten.
What is wrong with our information super highway? People make decisions based on total fabrications. That is what we need to fight.
July 13, 2009 7:09 PM | Reply | Permalink
Only after the results showed a pass/fail rate that reflected negatively on blacks and hispanics did they decide there must be something wrong with the test. If they saw this, and then went back and found out that in fact the test was flawed, that would be one thing, but they discounted the tests on the basis of fearing a lawsuit.
Well, this is one of the tricky bits of what was until recently a well-established area of Federal law. The city followed the accepted procedure. The law and court precedent clearly (until Ricci) said that it doesn't matter whether anything is wrong with the test itself...the only legally-important question is whether the test has the effect of harming minorities.
In the case at hand it's a bit hard to see why that's a good idea. But the precedent was established because of decades of various employers attempting to discriminate legally by coming up with methods that looked OK but managed to still "accidentally" keep minorities out. Which is why this decision is dangerous; in this particular case it may have worked out OK...but the USSC eviscerated some very important law in the process, and expecting it to lead to anything other than a lot of future employment discrimination is simply naive.
July 10, 2009 3:50 PM | Reply | Permalink
You have it slightly wrong as well. I used to try these cases back when this case law was formed.
If a test has a disparate impact on a protected class, the burden shifts to the test-giver to show the test is job-related. New Haven could not do that, so the law was crystal clear -- the test HAD to be thrown out.
Now, the SCOTUS, as I've noted before, is the only court in the land that does not even give good lip service to following precedent.
In the Ricci case, they completely turned precedent on its head, saying an aggrieved member of a protected class has the burden of showing a test is NOT job related.
Oh, those pesky "activist" right-wing judges Roberts, Alito, Scalia, and Thomas! How they love to make stuff up.
July 10, 2009 8:29 PM | Reply | Permalink
Exactly right. From the outside, those who haven't dealt with anti-discrimination law don't tend to realize how realtively simple are the basic premises and principles.
Ricci comes from a long tradition of bigots; and the Thomases on the court want to help them regain their former unassailable supermacism.
The only question is whether Thomas is completely insane. (He is the first SC "Justice" in the history of the SC to interpret the Constitution through the anti-Federalist view -- the view that both opposed ratification of that very ratification, AND lost that argument.)
July 22, 2009 12:29 PM | Reply | Permalink
I'd agree this may help deflate the intended criticism of Sotomayor somewhat. It does deflate Ricci's image.
However, if you look beneath the surface, there is a significant difference between the two cases on the question of qualification in hiring. In the 1995 case Ricci qualified by passing an exam, but complained that (questionably) this implied he wasn't hired for an extraneous reason. In the 2003 case, some applicants were given clear priority who had not passed an exam to qualify for the job over applicants who did.
The idea that an employer would cancel the results of an exam by asserting a supposed 'flaw' they themselves supposedly missed in the exam before giving it is so obviously a substantive question of principle to bring to court.
I'm sympathetic to the Sotomayor supporters who want to see this go away, but this new detail about Ricci's background doesn't change the fact that this whole mess brings to the surface the ugly, knotty problems -- indeed the incursion of new injustices -- in trying to remedy past discrimination with new discrimination.
July 11, 2009 1:31 PM | Reply | Permalink
Actually, you've got it wrong! This test was a brand new, first time ever used test. Also, the minorites who failed had all been firemen for several years. It is more likely, that this is what's going on here. Californa Rep Lynda Sanchez said that these standardized tests usually ask what she called "Regatta Questions" These are questions about Regattas, which are boat races or questions about the game of cricket. Now, how many minorities are likely to be familar with these activities? She said that she took one such test in school where the answer to the question was "quiet" The question was about churches. Having grown up in a hispanic church where mariachi music blared, her church was anything but quiet. It would be interesting to see what the test given to the firefighters looked like but, no one has ever produced a copy. In any event, I believe and hope that Mr. Ricci gets eaten alive for his duplicity. And Al Franken, using a cold, analytical and, clinical style to smash this guy would be fine with me!
July 10, 2009 2:48 PM | Reply | Permalink
What is wrong about this?
"The city gave a test that was presumably a standardized one, and not one they dreamed up on their own. Only after the results showed a pass/fail rate that reflected negatively on blacks and hispanics did they decide there must be something wrong with the test. If they saw this, and then went back and found out that in fact the test was flawed, that would be one thing, but they discounted the tests on the basis of fearing a lawsuit.
That certainly cannot be the standard for anything, legally speaking, can it?"
You are saying that this is the first time this test was ever given? Are you sure of that, and even if it was, I SAID if the test was found to be flawed, that justifies doing something about the test.
The reason they gave for throwing the test out was that they were afraid of a lawsuit. THAT is why, in my opinion, Ricci has a case. That is a flimsy reason for denying someone a job who passed a test that your city gave to people.
The test probably is a bad test. But that is not what this issue is about because the city took that away when they claimed fear of being sued as the justification for discounting the test.
July 10, 2009 2:56 PM | Reply | Permalink
Actually, according to existing civil law before the Supreme Court ruling, the city DID have to reconsider the test and the possibility of a lawsuit. New Haven's Fire Department has a long history of discrimination, unfortunately, and was slowly desegregated thanks to several previous lawsuits. Once the test results came out, the black firefighters might have had a pretty good basis for suing.
There's a good argument to be made that making promotions within the Fire Department on the basis of a standardized test is in itself discriminatory and unnecessary to the functioning of the Fire Department. After all, when someone is pulling you out of a building, do you particularly care if he or she is capable of solving a quadratic equation? It would seem that running simulated exercises and leadership tests would be far more relevant than a written exam.
The existing law said that when a company policy results in a disparate racial impact, the company must examine the policy to determine if that disparate impact might have been the result of unintended bias and whether that policy was absolutely necessary to promoting the effectiveness of company. I've just given what I think is a reasonable argument against the written test. Certainly it's enough to sustain a lawsuit. So while the threat of a lawsuit in itself is not necessarily enough to throw away an entire exam which people had studied hard for, the fact that there was an underlying argument which was good enough to sustain a lawsuit is enough to give New Haven a reason to scrap the whole thing and start over. They were stuck between a rock and a hard place.
July 10, 2009 3:42 PM | Reply | Permalink
That is right. Saying you want to change your behavior so you won't get sued is really the same thing as saying you want to comply with the law.
July 12, 2009 4:12 AM | Reply | Permalink
Don't get me wrong! I'm not saying the Regatta question was aked literally. Just that questions that may have less to do with the actual job function and more conceptual or philosophical questions. Maybe it's something like that but, without seeing the test we're all just speculating I guess.
July 10, 2009 2:54 PM | Reply | Permalink
Any speculation about the nature of the asserted flaw in the test is exactly that: speculation. If we all had a copy of the exam here it would probably fundamentally change the debate here.
July 11, 2009 1:36 PM | Reply | Permalink
What I would like to know is whether or not Frank Ricci got any special accomdations made for him during testing due to his dyslexia...
July 10, 2009 3:05 PM | Reply | Permalink
Wing-nuts never get special treatment. Any considerations they get are just the normal course of things. Its EVERYONE else that gets special treatment.
Its another side of the victim-hood syndrome that they all seem to suffer from.
July 10, 2009 4:15 PM | Reply | Permalink
Wing-nuts never get special treatment. Any considerations they get are just the normal course of things. Its EVERYONE else that gets special treatment.
Its another side of the victim-hood syndrome that they all seem to suffer from.
July 10, 2009 4:16 PM | Reply | Permalink
knarF icciR may think he is the new Joe the Plumber, but he is going to have his hat handed to him, when snarlin Arlen goes on his tact left crusade!
July 10, 2009 3:12 PM | Reply | Permalink
Joe the plumber.
Frank the firefighter.
Does anyone else think that the next GOP convention might be mistaken for a Village People concert -- minus the talent.
YMCA
July 12, 2009 1:52 PM | Reply | Permalink
Here is the really nasty one, how sure are we that Ricci took the test or did not cheat?
July 10, 2009 3:14 PM | Reply | Permalink
Let us see if he shows up in Congress in his uniform, mimicking traitor Oliver North's sympathy-generating tactics.
July 10, 2009 4:13 PM | Reply | Permalink
Is he a veteran? -- or only claiming to be?
July 10, 2009 4:42 PM | Reply | Permalink
In Ricci's case it would be his firefighter uniform. As with North in his ceremonial winter uniform during a July congressional testimony, Republicans may seek public sympathy by appealing to symbolism in order to trump the merits of a complex case.
July 10, 2009 5:01 PM | Reply | Permalink
You know he will!
July 10, 2009 5:38 PM | Reply | Permalink
You know he will!
July 10, 2009 5:41 PM | Reply | Permalink
I guess you can have your cake and eat it too.
July 10, 2009 4:57 PM | Reply | Permalink
The SCROTUM I mean SCOTUS decision won't stand for long, it is beyond me how they came to the conclusion they did since they basically threw out all the cases over the last 30 years. Once President Obama has had a chance to replace Kennedy and Scalia and maybe even Thomas that will be the end of it.
July 10, 2009 5:20 PM | Reply | Permalink
Interestingly enough, at the time of the high-profile enactment and signing of the ADA, the Congress also overturned (Civil Rights Restoration Act of 1984/5) a line of cases written by Rehnquist which blatantly ignored the actual text of Sec. 504 of the Rehabilitation Act in order to protect illegal discrimination.
At the same time, crackpot Robert Bork, self-avowedly a constitutional law professor, was campaigned on the need for a Constitutional amendment that would allow Congress to overturn the SC . . .
July 13, 2009 3:43 PM | Reply | Permalink
I don't believe Ricci's appearance is anything more than wingnut atmospherics. Nor do I belive that it will have any impact on the confirmation. I am, however, interested in what the guy has to say. I'm curious to hear his story of employment and promotion via litigation.
July 10, 2009 6:03 PM | Reply | Permalink
Dahlia Lithwick lays it out pretty well:
http://www.slate.com/id/2222087/
"Ultimately, there are two ways to frame Frank Ricci's penchant for filing employment discrimination complaints: Perhaps he was repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white. If that is so, we should all be deeply grateful for the robust civil rights laws that protect Americans from unfair discrimination in the workplace. I look forward to hearing Republican Sen. John Cornyn's version of that speech next week.
The other way to look at Frank Ricci is as a serial plaintiff—one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command. That's not the typical GOP heartthrob, but I look forward to hearing Sen. Cornyn's version of that speech next week as well. "
July 11, 2009 8:48 AM | Reply | Permalink
Sweet!
July 13, 2009 3:46 PM | Reply | Permalink
I'd agree this may help deflate the intended criticism of Sotomayor somewhat. It does deflate Ricci's image.
However, if you look beneath the service, there is a significant difference between the two cases on the question of qualification in hiring. In the 1995 case Ricci qualified by passing an exam, but complained that (questionably) this implied he wasn't hired for an extraneous reason. In the 2003 case, some applicants were given clear priority who had not passed an exam to qualify for the job over applicants who did.
I'm sympathetic to the Sotomayor supporters who want to see this go away, but this new detail about Ricci's background doesn't change the face that this whole mess brings to the surface the ugly, knotty problems -- indeed, the incursion of new injustices -- in trying to remedy past discrimination with new discrimination.
July 11, 2009 1:04 PM | Reply | Permalink
Who said anything about wanting it to go away? I don't want it to go away. I want it thoroughly discussed -- for what it is, not what it isn't -- publicly until at least YOU get it, instead of repeatedly posting speculative nonsense straight out of the racist/white supremacist bag.
July 13, 2009 3:50 PM | Reply | Permalink
I'd agree this may help deflate the intended criticism of Sotomayor somewhat. It does deflate Ricci's image.
However, if you look beneath the surface, there is a significant difference between the two cases on the question of qualification in hiring. In the 1995 case Ricci qualified by passing an exam, but complained that (questionably) this implied he wasn't hired for an extraneous reason. In the 2003 case, some applicants were given clear priority who had not passed an exam to qualify for the job over applicants who did.
The idea that an employer would cancel the results of an exam by asserting a supposed 'flaw' they themselves supposedly missed in the exam before giving it is so obviously a substantive question of principle to bring to court.
I'm sympathetic to the Sotomayor supporters who want to see this go away, but this new detail about Ricci's background doesn't change the fact that this whole mess brings to the surface the ugly, knotty problems -- indeed the incursion of new injustices -- in trying to remedy past discrimination with new discrimination.
July 11, 2009 1:40 PM | Reply | Permalink
I don't think four times is enough. Why don't you post it one more?
You fucking idiot.
July 12, 2009 9:18 AM | Reply | Permalink
"The idea that an employer would cancel the results of an exam by asserting a supposed 'flaw' they themselves supposedly missed in the exam before giving it is so obviously a substantive question of principle to bring to court."
Let me know when the merry-go-round slows down long enough for me to jump on and both of our heads can spin along together.
This is obviously NOT within the jurisdiction of the judicial system for those in favor of "strict interpretation," unless you're a conservative in favor of judicial activism. Did the city have a contract with their employees (the firefighters) saying that the exam was legally binding to their promotion decisions? Is a city not allowed to change its mind about its criteria for promotions?
This latest revelation reveals Ricci to be a self-serving hypocrite. He sued claiming discrimination even though other firefighters passed a Civil Service examination and (implied) he didn't. Now he wants to sue because he passed an exam that others didn't.
July 13, 2009 1:36 PM | Reply | Permalink
With such a stellar record of passing exams, you really sure that Ricci is dyslexic?
July 12, 2009 8:11 PM | Reply | Permalink
Ahem...
If you were Frank Ricci, you might say something like:
"Rank Fricci got a job and somebody wo whasn't lysdexic didn't."
I am a very bad person.
July 13, 2009 11:23 AM | Reply | Permalink
So he's a professional plaintiff/whiner.
Who probably supported "tort reform" because an asshole in all available directions.
Doubtless did or would vote for professional bully/"victim" Palin.
July 13, 2009 1:39 PM | Reply | Permalink
Here's a hypothetical for JNagarya and others:
Imagine a police department operating in a town where most of the councilmen are white. The town puts together a test every year that it administers for purposes of promotions within the police department. Under the rules, half of the available spots will go to the highest scores. So because there are 4 spots open this year, the top two test takers will get 2 of those spots.
However, last year, the council received a shock: the top test takers were black! In fact, looking at the numbers, if they were to follow the rules, the white candidates would be grossly under-represented (significantly enough to trigger "disparate impact"). What should the department do???
Well, under JNagarya's argument, the department would be justified in throwing out the black candidates' results and readministering the test. Or maybe someone else is arguing that it should be up to the department and the council (all white guys, remember) to defend a suit brought by WHITE policemen alleging disparate impact?
Most of you have your minds made up. But to those who are just angry: please consider the above fact pattern. Racism is racism no matter what color you are, and we should all be working together to end it.
And by the way, I've read the opinion in Ricci (including the dissenting and concurring opinions), the district opinion, and even the short circuit opinion. Have you?
July 13, 2009 3:20 PM | Reply | Permalink
I'm all for ending the racism. But let's stop the pretense that it's "all in the past" and that now we can repeal all prohibitions against racial (in this instance) discrimination because all of a sudden it's a level playing field on which the Frank Riccis always play fair.
As for the case itself: I've years of time in anti-discrimination law, so the outsider's view of that which constitutes "disparate impact" is absent significant qualifiers and "wrinkles".
That is especially true of law prohibiting discrimination based upon disability, in which, properly read, the law prohits discrimination -- but does not REQUIRE disability (the latter would be an absurdity). Disability discrimination is illegal even when the target of it isn't actually disabled, because it is recognized that the discrimination itself is disabling.
Even many/most advocates and courts don't "get" that "subtlety".
As for "minds made up"? I tend to have my mind "made up" based upon knowing the actual law, at least as it has been before it will be nullified and otherwise shredded by application of Ricci.
July 13, 2009 4:00 PM | Reply | Permalink
Nothing in your post even approached what I would call a response.
Your first paragraph is guilty of the Strawman fallacy (wrongly attributing arguments to the opponent). By putting "all in the past" in quotes, you imply that I have made such a statement. However, any reader can easily see that this is false. No part of my argument rests on the assumption that racism is all in the past.
Your second paragraph at least mentions the term "disparate impact". But that is all. You have failed to provide any explanation as to why it is not applicable to my hypothetical or why it is something that is important to your argument. Disparate impact can be shown simply with statistics and is, in itself, race neutral. I attempted to avoid the math by simply stating that it occurred in my hypothetical. If this is not adequate, then just substitute the numbers from the district court's opinion in Ricci.
Your third paragraph is simply irrelevant. Even assuming that you are correct in your take on disability discrimination, the Ricci suit was based on race. I understand that Ricci, in the past, brought a discrimination suit, but this is not the foundation for your hostility toward him.
Your fourth paragraph is also confusing. What is this "actual law" that you speak of? Are you implying that the Court changed Title VII? Are you implying that they simply overturned prior Supreme Court precedent? I assure you, the Court did not change Title VII. It only altered the burden of proof required to justify a race-based remedy to a perceived disparate impact. Nor did it overturn any prior Supreme Court precedent. No case was nuanced enough to be on point. Therefore, the Court was tasked with writing the caselaw that would control this unique situation. This is their job.
July 13, 2009 4:32 PM | Reply | Permalink
"Your third paragraph is simply irrelevant. Even assuming that you are correct in your take on disability discrimination, the Ricci suit was based on race."
The text of anti-discrimination law is essentially the swame across forms of discrimination: the specific form of discrimination is prohibited in the same way. That's why my statement applies to Ricci.
The only anti-discrimination law of which I'm aware which goes into more specifics is that which prohibits disability discrimination, as in that it is necessary to define "disability".
If you've read such laws -- I tend to doubt it -- and dealt at all with it in real instances, then you know that even advoctates don't "get" it on some points, let alone courts. (I litigated a case in which the 1st Circuit Court of Appeals backed the District Court on the ruling that Sec. 504 doesn't include a private right of action -- though in fact it expressly does.)
As for advocates it's almost worse: the only form of "disability" they recognize is that which is visible. The law, however, prohibits discrimination, also, against those who have hidden disabilities, those who merely have a past history of disability, and -- most telling -- discrimination against those not otherwise [than the discrimination] disabled. The first question from them is, "What's the disability," because their focus -- as is the courts', and the discriminators -- is the disqability, not the discrimination.
However, the law prohibits discrimination -- the focus is to be the prohibited offense; it can't and doesn't require disability -- the law ALSO prohibits disability discrimination against the NON-disabled, which the Congress was prescient enough to realize can and does happen.
"I understand that Ricci, in the past, brought a discrimination suit, but this is not the foundation for your hostility toward him."
I'm "hostile" to obvious bigots. His bigotry is lifelong; it didn't begin with his being ALLEGEDLY discriminated against. The bigest whiners against anti-discriminatioin laws -- so-called "special"/"extra" rights -- are those who'll never be in a postion to be discriminated against; their whole game is to rouse the gullible against the laws themselves so the bigotries -- supermacisms -- they support can be re-legalized.
Last but not least": there's no need for "hypotheticals," especially when they are vague defenses of the bigot by generalizing away from the specifics, and the instance case.
July 22, 2009 12:22 PM | Reply | Permalink
Fire departments, in cities and in towns, are often the last bastion or racism and sexism in those communities. Jusk ask a firemant that happens to be a racial or ethic minority, or a woman.
July 14, 2009 6:15 PM | Reply | Permalink
"Fire departments, in cities and in towns, are often the last bastion or racism and sexism in those communities. Jusk ask a firemant that happens to be a racial or ethic minority, or a woman."
An unsupported generality should not be used to bolster the actions of a specific department. If there was evidence that the New Haven fire department was racist, then that might be relevant. But I'd like to remind you that the department decided NOT to certify the results. In fact, with the exception of the fact that the test produced a disparate impact, there is no evidence that any member of the department was racist and/or sexist. Therefore, your comment is not only irrelevant, it is actually completely wrong as it applies to the New Haven department.
July 15, 2009 1:16 PM | Reply | Permalink
No one is implying that the NHFD or the city is racist. More to the point, racism exists within the ranks and is serious a problem as nepotism, where promotions are concerned.
July 15, 2009 3:01 PM | Reply | Permalink
No generality about it: I have it directly from the horse's mouth as concerns my city PD.
As for no racism in the Ricci case: you "accidentally" omit Ricci, who is racist.
July 22, 2009 12:35 PM | Reply | Permalink
I have that directly from the horse's mouth.
July 22, 2009 12:32 PM | Reply | Permalink
Most of us have read the opinions, Lawyermike, and we chuckle at the thought of John Roberts setting the world free of race-based discrimination.
In Ricci, the Court essentially gave a cause of action to white plaintiffs who believe an employer acted in a way that would prevent a disparate impact or disparate treatment lawsuit. So, now the city -- the employer -- is vulnerable from both the minority applicants and the non-minority applicants.
It's absurd. Roberts and Alito were sympathetic to the white, Italian-American firefighter who studied hard, passed a test and didn't get promoted. They ignored the city's admittedly racially neutral conduct in tossing out the test results.
The city had a good faith reason to discard the results. Of the 118 candidates who took the two tests at issue, 68 were white and 50 were members of racial/ethnic minority groups. Just two racial/ethnic minority group members would have been promoted, out of the 18 members who passed. So 17/68 (25%) of whites passed; 2/50 (4%) of non-whites passed.
The city had a good-faith and racially neutral reason for discarding the results. This action didn't violate anyone's equal protection rights. It merely allowed the city to rely on more appropriate promotion measures. The Court removed this right.
July 14, 2009 10:43 AM | Reply | Permalink
Well stated....Thank you.
July 14, 2009 5:11 PM | Reply | Permalink
"So, now the city -- the employer -- is vulnerable from both the minority applicants and the non-minority applicants."
Yes. This is a good thing. Why? Because Title VII is race neutral and should be available to both minorities and non-minorities. The dilemma solved by Ricci was how to balance a city's desire to use disparate treatment to correct what it saw as a disparate impact. Kennedy picked a moderate standard that fell between the standards urged by the two sides.
While it may be tempting to say that a city should be free to correct on its own what it views as a disparate impact, the point of my above hypothetical was to show the absurdity of this suggestion. If the black policeman in my example had performed disproportionately well on the exam, then it would have been up to a bunch of white guys to decide whether or not to throw out the results.
Kennedy's position puts the burden on the city to show a strong basis in evidence for disparate impact. In Ricci, the written exam came completely from study materials relating to firefighting (there were no "yachting" questions), and the oral exam was judged by 3 firefighters from other cities/states. And if memory serves, two of the three judges were firefighters of color. The Court was therefore correct to conclude that there was no strong basis in the evidence for finding an impermissible disparate impact.
"The city had a good-faith and racially neutral reason for discarding the results. This action didn't violate anyone's equal protection rights. It merely allowed the city to rely on more appropriate promotion measures."
True, nobody's equal protection rights were violated - but only because the Supreme Court did not reach need to reach that issue. As discussed above, the city's decision to throw out the results was not racially neutral. Similar to my hypothetical, the fire department in New Haven has a policy that guaranteed promotion to the top test takers. It is the one-third rule (as opposed to my fictional one-half rule). If the results had not been thrown out, some of those firefighters would have been guaranteed a promotion. The city admittedly discarded the results because the firefighters who were guaranteed promotions were not of a desired race (namely black). How anyone can conclude that this is a racially neutral action is a mystery. In my hypothetical, if the all-white city council had decided to discard the results of the black policemen, would you say that this was racially neutral too?
"It's absurd. Roberts and Alito were sympathetic to the white, Italian-American firefighter who studied hard, passed a test and didn't get promoted."
I thought "empathy" was a quality that Obama was looking for? Just kidding.
July 15, 2009 1:11 PM | Reply | Permalink
I do not see the irony/hypocrisy in Ricci's suing New Haven for not hiring him due to his dyslexia back in 1995. The fact that he is dyslexic should not/ can not be a reason for him not to be hired. The fact that the case was settled is irrelevant. If New Haven officials felt they had done nothing wrong by not hiring him, they should have fought the case.
In this case all 20 individuals were denied a promotion due to their race. Though, as 4 Supreme Court justices pointed out, these individuals had no "vested right" to be promoted, they can not be denied a promotion solely due to their race. Clearly,that is what New Haven officials did. It was not done with malice, but that is not relevant.
Finally, as one who believes the Constitution is a living document, there is no way that New Haven officials did not violate the Equal Protection clause in the Fourteenth Amendment. This clause, which is cited constantly in many Supreme Court cases, is also living and interpretations of it should not be confined to original intent. That, ironically enough, would be a constructivist view of this one particular clause.
July 13, 2009 6:02 PM | Reply | Permalink
I grew up around firefighters, mostly of Irish or Italian descent. Not to paint with too broad a brush, but the general sense, based on idle comments, was that they had low regard for minorities (including women) as potential firefighters. Granted, they have the toughest job in the world, and many are true heroes, but I can't help but feel that Mr. Ricci may have been driven, to a certain extent, by racial resentment and not principle.
July 14, 2009 5:08 PM | Reply | Permalink
Ingoring the fact that you have absolutely no evidence of Mr. Ricci's motives for suing, have you not thought about the chicken-egg paradox?
Ricci, who has dyslexia, is given an exam and told that the exam results will be used for promotions. He hires a tutor, studies multiple hours each day, and does exceptionally well on the exam. However, the department takes a look at his skin color and realizes that he is a few shades too light for their tastes, so it tosses out the results.
Now, is it more likely that Ricci's assumed "racial resentment" arose before the exam? Or is it more likely that any "racial resentment" is a product of the department discriminating against him on the basis of his race? Yeah, I agree: it definitely sounds more likely that it is a product of the test being thrown out.
July 15, 2009 1:32 PM | Reply | Permalink
Let me get this straight: a litigant loses a case before a judge, a litigant who knows nothing about law or procedure, and the Republicans expect us to accept his expert, unbiased testimony about why the judge should not be confirmed for the Supreme Court?
Are they stupid or do they think we, the public, are that stupid? Or maybe they're right, and a substantial part of the public can't figure this out?
July 14, 2009 5:16 PM | Reply | Permalink
I'd agree this may help deflate the intended criticism of Sotomayor somewhat. It does deflate Ricci's image.
However, if you look beneath the surface, there is a significant difference between the two cases on the question of qualification in hiring. In the 1995 case Ricci qualified by passing an exam, but complained that (questionably) this implied he wasn't hired for an extraneous reason. In the 2003 case, some applicants were given clear priority who had not passed an exam to qualify for the job over applicants who did.
The idea that an employer would cancel the results of an exam by asserting a supposed 'flaw' they themselves supposedly missed in the exam before giving it is so obviously a substantive question of principle to bring to court.
I'm sympathetic to the Sotomayor supporters who want to see this go away, but this new detail about Ricci's background doesn't change the fact that this whole mess brings to the surface the ugly, knotty problems -- indeed the incursion of new injustices -- in trying to remedy past discrimination with new discrimination.
m65 kamagra
June 6, 2010 7:52 PM | Reply | Permalink