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Firefighters and Professors

June 30, 2009

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WASHINGTON -- Some critics of affirmative action believe that Monday's ruling by the U.S. Supreme Court on race and hiring could be used to question practices used in faculty and administrative hiring in higher education. Lawyers in higher education, however, tend to reject that view.

The U.S. Supreme Court ruled, 5 to 4, that white and Latino firefighters in New Haven were illegally denied promotions when the city threw out the results of a promotion test that would not have resulted in the promotions of any black firefighters. New Haven officials maintained that they rejected the test because it had a "disparate impact" on black firefighters, and feared being sued if no black firefighters were promoted.

Under federal law, measures that result in "disparate impact" -- a statistical pattern in which some groups are less likely to be employed than others -- aren't necessarily illegal. And the Supreme Court found that this test was sufficiently related to job duties and business practices that it was valid. (The dissent argued otherwise.) Further, the majority opinion said that the fear of being sued by black firefighters did not justify rejecting the test results.

In numerous ways, the hiring of New Haven firefighters does not resemble most hiring of faculty members and administrators, which is not based on test scores. Generally, the higher education legal world -- which has been watching the case closely, but not taking an active role in it -- has viewed those differences as significant enough that there should not be immediate ramifications. Critics of colleges' affirmative action policies in hiring, however, see principles at play in the New Haven case that they believe should apply to higher education. (One key note: The decision has no apparent impact on the 2003 decisions by the Supreme Court that upheld the use of race and ethnicity, in certain situations, in public colleges' admissions decisions. Generally, the Supreme Court treats admissions decisions and hiring decisions as separate matters.)

Roger Clegg, president of the Center for Equal Opportunity, a group that has criticized affirmative action programs in higher education, said he was pleased by the Supreme Court's ruling and expected it to have an impact on colleges' hiring of faculty and others. Among the practices he cited as vulnerable (not used by all colleges): letting departments make hires when there isn't a regular slot available if a good minority candidate has been identified, or rejecting finalist pools because they lack candidates from certain racial or ethnic groups.

Clegg said that the legal problems facing such policies becomes evident when groups are substituted. "Imagine a dean saying to a department that if you are going to hire a minority person you can't have a slot early, but if you find a white person you can. Or a dean saying to a department that you don't have any whites in the pool so we'll throw the pool out," Clegg said.

While these situations aren't identical to New Haven, Clegg said that the Supreme Court's majority opinion is based on a principle of racial equality in hiring. "If a college treats [job] applicants differently based on race, they are now on very thin legal ice," he said.

But Ada Meloy, general counsel for the American Council on Education, said that while colleges should study the decision, she didn't except to see much of an impact. "I don't think there are strategies that are widely used in higher education that are threatened by this decision. Efforts to increase diversity, particularly of faculty, will continue," she said.

Asked about some of the examples Clegg cited, she noted differences between those situations and the one in New Haven. In the firefighters case (and any hiring based on highest scores on an exam), there is a clear ranking of candidates and a decision to throw out a test or alter a test creates situations in which specific individuals are harmed because they do not get the job they would have with their test score.

The firefighters who lost positions "had a much greater assurance of being promoted" than would a group of finalists for an academic job, where searches regularly are expanded or refocused based on a range of criteria. There would be no way for any finalist to assume he or she would be hired but for a desire to broaden a pool, she said. "I don't think the desire to have a diverse pool of candidates is threatened by this decision," she said.

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Comments on Firefighters and Professors

  • Splitting Hairs
  • Posted by Jackie on June 30, 2009 at 8:00am EDT
  • Scott:

    Unfortunately, comparing the New Haven fire department and academia really does not provide a clear picture of what is happening all over the country. It may not affect higher education as much as it does the corporate world, but the bottom line is that black applicants get preferential treatment over the white applicants. There is such a thing as reverse discrimination and it really cuts to the core when it happens to you. It is really tough being a white person these days or haven't you noticed. Jackie

  • Posted by Professor on June 30, 2009 at 9:00am EDT
  • Amen.

  • Legal defense v. principle
  • Posted by April on June 30, 2009 at 9:00am EDT
  • So the defense of preferential treatment in higher education is not that we don’t engage in the same practices, which have the same result s the S. Ct. has ruled unconstitutional. Rather, our defense is that, due to lack of transparency in our hiring process, none of the victims of such policies can prove their case. Is that correct?

  • Root causes and definition
  • Posted by Richard , Instr at Public on June 30, 2009 at 10:00am EDT
  • It is amazing to me how folks will turn around a situation to serve their own means. Those firefighters passed the test, therefore, should have been promoted. The New Haven city council was sensitive to the fact that the test itself could have been inherently discrimitory. The results of the test 'are proof positive'. As someone said, there is nothing like reverse discrimination, there is just discrimination.

  • What world are you living in?
  • Posted by error-prone on June 30, 2009 at 10:00am EDT
  • Professor & Jackie -- You should look at the facts instead of focusing on a few anecdotes. Blacks in America have shorter, unhealthier lives and less income throughout their lives. How do you explain that there's only one black senator? You can't really think it's an advantage to an American to be born black today?

  • apples, oranges, and race
  • Posted by Sarah , Professor on June 30, 2009 at 10:00am EDT
  • 1. Firefighters and professors have very different job descriptions. Most colleges expect their graduates to have learned something about intercultural understanding and communication across various kinds of cultural boundaries, including race. A racially diverse professoriate and student body furthers that goal.

    2. That this goal remains immensely important is evident in the postings on this article. As a culture we remain bitterly divided and deeply confused on matters of race; we all have a lot to learn. And we won't learn if we wall ourselves in and protect our enclaves.

  • 14th amendment
  • Posted by rightwingprofessor on June 30, 2009 at 10:15am EDT
  • I have an idea, how about we actually enforce the 14th amendment as written. Wouldn't it be so much simpler if we agreed that no governmental agency should take race into account for any reason at any time. Then we wouldn't have to read these convoluted 90 page opinions trying to justify what American's know is wrong.

  • Access v. Quality
  • Posted by RJW on June 30, 2009 at 10:30am EDT
  • April hit the bulls-eye on the twisted rationale for differentiating academe's practices. We are beginning to come to grips, or at least forced to face, the inherent conflict between access and quality where both are clearly important but the more difficult choice is in the priority necessary to determine which is the primary. Have we given up too much on the quality component in the interest of access when in the long run no society can truly benefit from lowered standards. Is there supposed to be some comfort found in Ms. Meloy's assertion that: "In the firefighters case (and any hiring based on highest scores on an exam), there is a clear ranking of candidates and a decision to throw out a test or alter a test creates situations in which specific individuals are harmed because they do not get the job they would have with their test score." It's pretty sad that the great principles behind equal opportunity and equal protection should be shrouded behind the the protective attributes of ambiguity.

  • Merit, not skin color, should determine hiring
  • Posted by Disillusioned academic , Professor in A&S at Research U. in North America on June 30, 2009 at 11:00am EDT
  • I was chair of a search committee in my department, and I was told point-blank by our dean that a short list that did NOT contain persons of color or women would be returned to the department and not approved. The dean had no interest whatsoever in making sure that we hired the best scholars out there, only that our short list consisted of the politically correct mix.

    Defenders of racial preferences today are justifying such hires by redefining the criterion of "merit" to state, as Sarah did above, that a racially diverse faculty is required to teach "intercultural understanding" and "communication across cultural boundaries." No empirical data exist to support the idea that these skills can only be taught by racial minorities. It's also not obvious to me that this criterion is more important than excellence in research and teaching in one's subject matter to justify the often profound racial preferences that occur in university hiring.

  • How do we define excellence?
  • Posted by Sarah , Professor on June 30, 2009 at 11:45am EDT
  • “Disillusioned academic” and RJW both appear to assume that “excellence,” “quality” and “merit” are absolutes, determined by criteria that are timeless and independent of context. And yet historically our criteria of excellence have changed dramatically over time. I am not claiming that intercultural understanding can “only be taught by racial minorities”—on the contrary, I am making the case for a genuinely diverse professoriate that can help our students to learn what we want them to learn. In my experience, that also means creating a professoriate whose members are willing to learn from each other and to change, ourselves, over time. That means, for all of us, entertaining ideas and listening to voices that we might at first find unsettling; that means truly seeking to understand and to find common ground. It also means opening up our canons--and our minds.

     

    For evidence of the value of diversity in student learning, see:

    http://www.diversityweb.org/Digest/Sp99/benefits.html

     

    How do we want to answer “Error-prone”’s questions?

  • Posted by To Disillusioned on June 30, 2009 at 12:00pm EDT
  • Disillusioned, although your Dean's statement by itself seems odd he/she is on the right track under federal guidelines in that applicant pools are one of the areas that are looked at closely. Without a good explanation as to why the pool is not diverse (usually requires a small national pool and a good outreach story) the smartest strategy is to reject the pool.

    To be honest, though, direct outreach strategies should be enough.

  • Stop Touching Me!
  • Posted by Dr. K on June 30, 2009 at 12:15pm EDT
  • When I was little and had to sit next to my brother on long car trips, he would amuse himself by annoying me. His inability to stop poking me would lead to my whiny anthem, "Stop touching me!" If my parents cracked down on his shananigans, he would harass me without actually touching me. It was a "gotcha" on a technicality that ignored the larger context.

    Technically, no one individual's race or gender should result in that person's being denied opportunity. However, such a simplistic statement ignores the larger context.

    I was on a history search committee last year. I was disappointed that our pool of finalists included no women or minorities, especially since we hired two white men the previous year. (So no, Jackie, I haven't noticed that "it is really tough being a white person these days.") In the end, we hired an additional white male , and I was satisfied that (a) we made a good-faith effort to recruit women and minorities for the position and (b) the person we hired was a very good candidate for the job.

    However, during the candidate's teaching demonstration, the content and style of his lecture really failed to engage the female and minority students in the room. These students will not likely become historians. The pool of historians in his area will not diversify. The cycle will continue. This is part of the greater context, at least in my eyes.

  • "objective" tests?
  • Posted by mathprof on June 30, 2009 at 1:00pm EDT
  • How can academics argue that a multiple-choice test is an adequate measure of how good a leader a firefighter is going to be? You wouldn't set up a multiple-choice test as the qualifying filter for the next professor in your department.

    In the New Haven case, the test used was generated in New York and asked, among other things, whether fire trucks should be parked heading uptown or downtown. Latinos and African Americans may score behind whites and Asian Americans on multiple-choice tests. If what's being tested is nonetheless essential to the job, the racial disparities in the test scores don't make the test discriminatory. This doesn't seem true in firefighting, though, and, as the dissenting opinion in the New Haven case observes, other Connecticut cities choose their fire officers by a different process. Granted, the actual scoring of the test is objective, but the construction and use of this particular test to decide who's the best firefighter is anything but objective.

  • White Preferential Treatment
  • Posted by AA Proponent , Professor at East Coast University on June 30, 2009 at 1:45pm EDT
  • People of color who have sat on hiring committees know that Black candidates and other candidates of color do not get preferential treatment. When you have a hiring committee of 5 Whites and 1 token minority, the values and expectations of the White committee members drive the decision. Affirmative Action almost never comes into play, because as long as you include one minority in the interview pool, Equal Opportunity Offices don't see anything inequitable about hiring practices or decisions. It is imperative that institutions of higher education not only avoid allowing this to adversely affect the few (even if inadequate) Affirmative Action policies that are in place, but also get serious about leveling the playing feel at a practical level.

  • Reverse Discrimination is Now Dead
  • Posted by George Patsourakos , Retired Administrator at Harvard University on June 30, 2009 at 1:45pm EDT
  • I believe that the recent U.S. Supreme Court decision on race and hiring will have a significant impact on colleges. Colleges that continue to hire and promote minorities who are less qualified than whites can expect to be confronted with a plethora of lawsuits. The Supreme Court decision clearly affirms that hiring less qualified blacks -- rather than more qualified whites -- is discrimination in reverse. I agree with this decision. America must now hire and promote candidates on the basis of their qualifications -- not on the basis of their race or ethnicity.

  • What is important?
  • Posted by Dr. Anonymous on June 30, 2009 at 10:15pm EDT
  • In my opinion, those who support an affirmative action or diversity agenda act upon a number of assumptions: that if black and Latino candidates score lower on a series of tests or criteria, there has to be something wrong with the tests or criteria; that black and Latino faculty bring to the university a distinctive "culture" significantly different from ours; and that this culture is very important for our students and ourselves. I so not share these assumptions. I should say No! to all three.

  • Diversity vs. Unity
  • Posted by Will Selling on July 1, 2009 at 12:15am EDT
  • The world of academia is essentially very individualistic. It is also characterized by emphasizing theory over practicality. The fire service, on the other hand, is essentially a team-oriented endeavor which is strictly practical. When an individaul goes to college and fails a class, it only affects him/her. However, when a firefighter fails to perform his/her job, it may cost someone their life, especially other firefighters. Unfortunately, both are burdened with political-correctness, the social phenomenon which creates a double-standard between conservative, white males and "minorities." Having gone to UC Santa Cruz and then Bates College, I can say for sure that sitting around in a classroom and discussing/ debating discrimination doesn't accomplish much. It's too theoretical. And, according to the law of attraction talked about in The Secret, the more you focus on something, the more you bring it about. So, the more universities emphasize diversity, individuality and focus on racial, ethnic and gender tension, the more they bring those issues about. The more we focus on diversity, the more we get what it means: separateness, division, divisiveness. The more we focus on individual rights and demands, the more individualistic our society becomes.

    I currently work as a paramedic on Oakland and have worked for two different fire departments, one on the east coast and here on the west coast for the state of California. Anyone who thinks white males here in California have an advantage are completely out of the loop. It is a running joke that white males are SOL (S*** out of luck). Many minorities get some preference if they are bilingual. At least that is a specific skill which is applicable when interacting with the public. However, the biggest problem I've seen over the last 15 years in the fire service is the preference given to women, even when there is a huge physical disparity compared to male firefighter/ applicants. I personally have seen and heard of instances over and over where women will not pass a physical agility test, only to have that test altered or have the results thrown out altogether. Over the years, most physical agility tests are strictly pass or fail, and are easy enough to where almost everyone passes. And, unfortunately, it shows on thefireground. I expect more "experimentation" in the individualistic world of academia, which is all theory. However, the fireground is no place to give preference to people strictly because of their gender, race, ethnicity or sexual orientation. Too much is at stake.

    The only place in our country where I have not seen a lowering of standards in order to accommodate the world of political-correctness is the United States Marine Corps. And, as a veteran of two foreign wars, I can say the Marine Corps is successful on the battlefield strictly because it does not make excuses, especially based on racism, sexism, etc. Instead, the Marine Corps produces results.

    When the fire service and the military emphasize unity and teamwork too much, it can stifle the individual. However, when our society in general and academia in particular emphasize diversity too much, it creates divisiveness. This is the point most people miss: diversity in NOT a universal principle, it is only a politically-correct buzzword which, when touted as a universal principle, does not bring about unity. As Allan Bloom writes, "Freedom of the mind requires not only..the absence of legal constraints but the presence of alternative thoughts. The most successful tyranny is not the one that uses force to assure uniformity but the one that removes the awareness of other possibilities..." Until universities restructure the classroom environment and make it more team-oriented, giving practical group projects, academia will always remain too individualistic to understand the teamwork required in the fire service and the military. Because those experiences are team-oriented, they have a greater potential to be ruined by the political-correct emphasis on diversity, and also greater capacity to "teach" unity, which is the dultimate goal.

    Will Selling

  • A Few Corrections...
  • Posted by Dr. K on July 2, 2009 at 12:45pm EDT
  • George Patsourakos... The Supreme Court decision does not clearly affirm "that hiring less qualified blacks -- rather than more qualified whites -- is discrimination in reverse." This was not the question they addressed. The question was whether the racially disproportionate results of New Haven's test (a) had to be voided because the test was in violation of civil rights law or (b) had to be counted because there was not adequate evidence that the test was discriminatory.

    Dr. Anonymous... Some of us who support Affirmative Action do not assume that a test is poorly designed just because Blacks and Latinos perform poorly on it, but fully aware that a poorly designed test may contain cultural biases, we insist that if a test does have extremely disparate outcomes for different racial groups, that that test should be reevaluated to see whether bias exists. You also deny that there are significant or important cultural differences among racial groups. I can only assume from this premise that you have not lived or worked in settings where a different ethnic group's ways are the dominant ones or that you feel that all Americans should conform to white middle class standards at all times.

    Will Selling... You say, "The more we focus on diversity, the more we get what it means: separateness, division, divisiveness." You have missed the point. The first step in achieving the goals of diversity IS a recognition of differences. But the second step is an attitude of inclusion. Yes, there are functional limits to inclusion, since at some point members of a team must adopt common standards. Who sets those standards? Is it always the same members of the group?

    It's easy to project one's own values and goals on the rest of the world. It's disorienting and disconcerting to discover that others have markedly different perspectives and experiences, but that doesn't mean you should tune them out or dismiss their worth.

  • Another liberal twisting things
  • Posted by Cheryl on July 2, 2009 at 1:00pm EDT
  • I had to laugh when I read this article. The whole issue about the fire fighters was the white fire fighter passed the test and earned the promotion. They were going to deny him the promotion because he was white. THAT is not what Martin Luther King, Jr. was after when he fought for equality. Success should be earned and not just granted (or denied) based on skin color.

  • Cultural Bias?
  • Posted by Wineplz on July 6, 2009 at 2:45pm EDT
  • Would someone please show me some questions in that firefighter test that indicated there were (alleged) cultural biases that prevented Black or Latino candidates from passing? From what I understand, these questions were based on department procedures, policies, etc, and I understand that each of the applicants were Americans. If they were born, or at least lived a large portion of their life here in America and experienced and lived American cultue, how is there a cultural bias or difference in how one American asks another American the proper procedure for entering or exiting a burning building? I would even dare to say that the procedures and policies American firefighters have are similar to those in other countries with organized fire departments--so how is a question about safey or protocol wrought with cultural bias?

  • Educational benefits of diversity?
  • Posted by ken on July 13, 2009 at 8:45pm EDT
  • Here's one of the few studies that examined the connection between racial diversity and educational benefits without relying on anectodal or impressionistic data: http://www.uark.edu/ua/der/EWPA/Research/Achievement/1799.html

    The study's finding contradict widely reported 'alleged' benefits of diversity in the classroom

  • The Unanswered Question
  • Posted by Common Sense on July 14, 2009 at 5:45pm EDT
  • I applaud the SCOTUS for making the correct decision, and dissent such as Ginsburg's is so deplorable, it should be ridiculed for its unsound logic. This is 2009, and Title VII should mean EXACTLY what it says -- that neither race, nor religion, nor color, nor sex, nor national origin should be utilized to give preferences to anyone, period. Giving preferences to certain people based on certain physical characterstics they were born with, such as skin color or gender, is morally wrong and illegal. There is no gray area. Throwing out a certified, valid test because you don't like the "politically correct mix" of skin color (or lack thereof) is wrong. The best, hardest working, and most intelligent should be promoted to be a leader.

    When I meet someone, I don't stereotype them into a group; I detest people who make those assumptions. I give everyone a fair, decent chance to make an individual impression upon me with the demonstrated merits of their knowledge, wisdom, charisma, ambition, and hard work. Even in Utopia, if everyone started with the same amount of money and posessions, some people would still do better than others based on their character, ambition, and God-given talents and intelligence. You just can't expect equal results. Let's be honest about diversity too. How shallow of a person do you have to be to categorize people by only race and gender? We are all already 100% diverse from one another. Period. Show me one person in the entire world that has the exact same combination of DNA and life experiences that I do; it doesn't exist. That's why you must treat people as individuals, and not categorize them into some group of limited complexity; you rob them of everything they bring to the table and richness of their personal story.

    Statistically, Blacks score less on ALL standardized tests than Latinos, who score less than Whites, who score less than Asians. So what does this mean? The lowest scoring groups will tell us that the test is somehow biased or racist. The UNANSWERED QUESTION is ... How? How is it biased? How is it racist? I've yet to hear anyone come up with an intelligible answer. Tests have never been able to discriminate against anyone. They are inanimate objects. 2+2 will always equal 4 and to blame others because of your own failure is inexcusable. Given the same amount of study time and study materials, two people taking the same test have different results for only two reasons: different intelligence levels or different work/study ethics. Period.