The Supreme Court tweaked the edges of discrimination law in its New Haven firefighters decision last week, but otherwise left the evasions and euphemisms of that hoary edifice largely intact. This is probably as it should be. It is not for the Court to deconstruct our official legal discourse about race unless it is explicitly asked to do so. But the political branches need not be so constrained. Judge Sonia Sotomayor’s upcoming confirmation hearings are the perfect occasion to question the assumptions that underlie the race industry, since Sotomayor, with her history of launching racism accusations, has been, and promises to remain, an active participant in it.

The main function of the race industry today is to repackage problems of black underachievement as instances of white racism. For decades, the vast majority of alleged discrimination violations have been manifestations of the black-white performance gap, whether in academic achievement, crime rates, or poverty-producing behaviors like illegitimacy and dropping out of school. The race industry cloaks such problems in the language of rights and racism—pushing the achievement gap offstage, keeping alive the phantom of ubiquitous white bias, and generating jobs in the race industry. Thus, employment and educational standards that no one would otherwise think twice about are suddenly viewed as legally suspicious, without any reason to think them flawed except that blacks do not meet them at equal rates.

The New Haven firefighters case, Ricci v. DeStefano, provides a perfect example of how the race industry converts innocuous job practices into markers of hidden bias. As is well known by now, New Haven canceled the results of a 2003 promotional exam for its fire department after no black firefighters scored high enough to be promoted. The successful candidates, 17 whites and one Hispanic, sued the city, claiming that it had discriminated against them on the basis of race. New Haven argued in court that had it promoted the high-scorers, it would probably have been sued by the black test takers for discriminating against them with an apparently biased test. Thus, it was justified in nullifying the entire process to avoid liability for discriminating against blacks, the city maintained.

Ricci raises questions about the use of race in decision-making—especially in government decision-making—that have simmered within discrimination law for years. Does a race-conscious remedy for alleged discrimination against one group, for example, discriminate against another? Does the effort to craft a selection method that produces a racially proportionate result constitute impermissible discrimination? When does the effort to avoid allegedly discriminating against one group become discrimination against another?

Such questions occupy constitutional-law theorists endlessly, and for good reason, since they implicate the core constitutional value of color-blind equal protection before the law. In Ricci, the majority predictably finessed them with the familiar judicial tactic of crafting an evidentiary standard, holding that an employer could take a race-conscious action that discriminates against one group—in this case, the successful candidates for fire department promotion—only if it finds a “strong basis in evidence” to believe that it would face liability from another group if it failed to take that action. But the Court avoided the more basic question raised by the case: Why was the exam being discussed in terms of race and discrimination at all? The New York Times’s Supreme Court reporter, Linda Greenhouse, wrote in an op-ed that the exam “appeared to favor white test-takers.” It did nothing of the sort. It merely favored those who had studied hard and prepared themselves to become captains and lieutenants. But we have been conditioned by the decades-long reign of disparate-impact theory, which the black firefighters would have used in a potential suit against New Haven, to discuss neutral employment practices in racial terms and to entertain the idea that the expectation of moderate cognitive performance is an unfair imposition on blacks.

Arguments offered by New Haven against its own promotional test—embraced, disturbingly, by nearly half of the Supreme Court—demonstrate how desperate the search for bias has become. New Haven pointed out that the exam asked test takers to show “how they would address a particular problem [by] verbally saying it or identifying the correct option on a written test,” in the words of a rival test developer; the city’s implication was that any expectation that someone be able to use language to express ideas would be unfair to blacks. New Haven also objected that the test’s final results were based on a 60–40 weighting of a written and an oral exam, a formula that the department had used for two decades. This objection is purely ad hoc; had the weighting been 40–60, the race advocates would have been just as adamant that it was unfair. Nothing in the record suggests that a different weighting would have changed the pass rate. New Haven’s general counsel further complained that the exam tested the “ability to memorize textbooks but not necessarily to identify solutions to real problems on the fire ground.” But memorizing information is a key mechanism of learning, without which little knowledge is possible. To the extent that the lieutenant and captains’ jobs require the acquisition of additional knowledge, conveying and testing that knowledge in written form is perfectly reasonable. None of these features of the exam would have been considered the least bit problematic if blacks had not performed poorly.

The final charge against the exam is the most desperate of all. Janet Helms, a professor of clinical psychology at Boston College and author of such works as A Race Is a Nice Thing to Have: A Guide to Being A White Person or Understanding the White Persons in Your Life speculated to the city’s civil-service board that black firefighters in New Haven may have developed their own unique, black way of fighting fires in response to unequal opportunity on the job. The portrait of firefighting that the test developer used in drawing up the test might have been biased toward the “white” way of firefighting in New Haven, Helms continued, since two-thirds of the firefighters who submitted analyses of their jobs to the test developer were white. Helms had no knowledge of firefighting, had refused to review the promotional exam, and had sought no exposure to the New Haven Fire Department. She provided not one shred of evidence to support any plank of her theory—which makes her superlatively representative of the race industry.

In light of such fantastical speculations, it is worth reviewing New Haven’s efforts to ensure that the test measured the requisite supervisory skills and did not contain any possible hypothetical bias. The test developer interviewed and rode alone with the department’s chiefs, lieutenants, and captains to identify the knowledge and abilities essential for the positions of captain and lieutenant. At every point, the test developer oversampled minority firefighters while building his portrait of the job. The 100 questions on the written exam were pitched below a tenth-grade reading level. Each of the three-man assessment panels for the oral exam was composed of one white, one black, and one Hispanic firefighter. Third-party reviewers confirmed that the oral exam accurately tested the real-world situations confronting supervisors.

Perhaps in implicit recognition that the case for bias in the New Haven exam was laughably weak, Justice Ruth Bader Ginsburg pulled out the usual race-industry trump card in her dissent: historical discrimination. The majority opinion, she said, “leaves out important parts of the story”—to wit, that firefighting “is a profession in which the legacy of racial discrimination casts an especially long shadow.” It’s no surprise that Ginsburg never bothered explicating her metaphor, because she provided no evidence, apart from the allegedly biased test itself, of how the “long shadow” affects the New Haven Fire Department today. We are just supposed to assume that because firefighting was inhospitable to blacks four decades ago, it remains so now, and that such inhospitality prevents blacks from succeeding on promotional exams. (Past discrimination against Jews by the Ivy Leagues may also be said to cast “an especially long shadow,” yet it has had no noticeable effect on their performance today.)

The Court’s majority and minority opinions are assiduously silent about the only reason why anyone views the New Haven firefighters’ exam through the lens of race at all: the gap in cognitive attainment between blacks and whites. As Stuart Taylor pointed out in his National Journal blog, the average black high school senior possesses the academic skills and knowledge of an average white eighth-grader. For decades, blacks have scored 200 points below whites and Asians on the verbal and math SATs. This skills gap means that it is virtually impossible to devise any job test that measures mastery of a body of knowledge and cognitive expertise that will not have a disparate racial result. To discuss black underperformance on any given task without mentioning the skills deficit is like having a discussion about rain and drought without mentioning cloud formation. As long as black underachievement remains unacknowledged, the old standby—racism—will always rush into the vacuum as an explanation for disparate impact.

This ongoing taboo, in judicial discourse and elsewhere, suggests certain questions for Sotomayor during her confirmation hearings. Does she believe that it is unfair to expect minorities to display knowledge through the use of language, and if so, why? In light of the black-white achievement gap, why should disparate results on a cognitive test create any presumption of bias? What kinds of exams would be fair to blacks? Does it lie within the power of minorities to start achieving at higher rates by staying in school, studying harder, and paying more attention in class? We have heard repeatedly about the studying marathon engaged in by the lead plaintiff in the firefighters case, Frank Ricci. None of the many advocates charging bias in the New Haven firefighters’ exam has produced any examples of black firefighters’ expending anywhere near Ricci’s eight to 13 hours a day of preparation. Presumably, if such cases existed, we would have heard about them by now. Is it possible that if more black firefighters had devoted as much effort to studying as the successful candidates did, they would have done better on the exam?

It will take more than one judicial confirmation hearing to overcome our evasions about today’s most pressing racial problems. But those problems won’t get solved until we break the monopoly on explanations for black underperformance that the race industry currently enjoys.


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