Wednesday, July 01, 2009

Ricci v. DeStafano and Higher Education

By Richard Vedder

As I predicted, the U.S. Supreme Court reversed the Court of Appeals in the case of Ricci v. DeStefano. This is an important case, with real implications for higher education. We had strong feelings at CCAP about the case, and co-sponsored (with the Pacific Legal Foundation) an amicus brief to the Supreme Court on it.

There is a great summary of the case on Wikipedia, but basically New Haven threw out the results of a civil service examination for promotion of firefighters on the grounds that the test had a "disparate impact" in violation of the Civil Rights Act of 1964. The district and Court of Appeals agreed, but the Supreme Court, by a vote of 5 to 4, reversed. Why?

The Civil Service test used had been used many times before, unchallenged. In previous tests, minorities scored high enough to secure some of the positions involved. In this instance, however, blacks scored relatively poorly on the test and did not win any positions. The Mayor and activists in the African-American community pushed to reject the test, which was done. The New Haven firefighters sued, ultimately winning.

So what? First of all, the sharp decline in the importance of employer testing of prospective workers is a consequence of Griggs v. Duke Power, a seminal case that Bryan O'Keefe and I have argued had a momentous impact on colleges, increasing the value of a college degree as a certification device. That, in turn, allowed colleges to raise tuition fees more than otherwise would have been the case. The college/high school earnings differential started a sharp rise a few years after Griggs was decided (Griggs established the "disparate impact" rule). The Ricci decision might embolden some to use employer testing a bit more aggressively, knowing the Supreme Court will not simply reject a test mainly based on actual race-based outcomes.

Second, colleges have used a variety of guises to get race-conscious results, and have clearly discriminated against Asians and whites in the process. Two University of Michigan cases are the last word on this, split decisions that sort of gave universities a tenuous and ambigious basis to continue their racist (anti-white, anti-Asian, probably anti-Jewish) admission and other policies. Ricci might make them a bit more cautious in pursuing such policies. In particular, in hiring decisions a sort of informal quota system that seems to prevail at many universities may be somewhat more vulnerable, particularly where objective criteria show that individuals who are, for example, white or Asian, have superior qualities.

CCAP is about affordability and productivity, not mainly concerned with issues such as affirmative action. Nonetheless, hiring less meritorious employees or taking less meritorious students can raise costs, increase inefficiency, and sometimes violates our sense of fairness or equity. That is why we were pleased with the Ricci decision.

1 comment:

right-wing prof said...

I wouldn't get your hopes up too much. This case was very straightforward in the sense that there was an objective test with many people taking it, and then it was thrown out. The discrimination that goes on in hiring (the subtle quotas that this department needs to hire a woman or particular minority) is much harder to prove, especially when only one person is hired out of a pool of hundreds. Phone calls and conversations with affirmative action officers are not recorded.

Also disappointing is that this decision doesn't involve the constitution at all, as Scalia points out. In theory Congress could change the law tomorrow and render the entire decision moot. I would much prefer a ruling saying that disparate impact is unconstitutional.