27 May 2009

Supreme Court: Ricci v. DeStefano

The Objectivist
Affirmative Action Unmasked
Dunkirk-Fredonia Observer
May 25, 2009

This past April, the Supreme Court case heard Ricci v. DeStefano. This case is interesting because it highlights the tradeoffs involved in affirmative action and, outside of education, likely signals its slow death.

In 2003, the City of New Haven, Connecticut took steps to fill the captain and lieutenant positions in its fire department. New Haven’s law and regulations required that hiring and promotions be based solely on merit as determined by a competitive exam. New Haven hired a firm that specialized in employment-related tests, particularly ones relating to public safety. The test was approved by independent experts. 118 people took the test, including 27 black candidates. None of the black candidates did well enough to qualify for the 15 promotions, although one or two Hispanics did. On a side note, New Haven had already tried to mitigate the effects of the exam by giving the written exam get 60% of the weight to get promoted and the oral exam get 40%.

After the exam, the Civil Service Board would normally certify the list of those eligible for promotion. However, a local minister with close ties to the mayor made it clear that because of the racial disparity, he opposed certification. City officials tried to impugn the exam, but the firm that designed it stood by it and offered to perform a post-exam study that would have validated the test. The city blocked the study, almost undoubtedly because they knew the test would have been validated. They did so even though their contract with the firm required them to pay for it.

New Haven then refused to certify the exam on the basis that it would face lawsuits relating to Title VII of the 1964 Civil Rights Act. Some of the firefighters denied promotion sued the city and several individuals on the basis that it violated their rights under Title VII and the Equal Protection Clause. The Equal Protection Clause prevents state agencies from denying people equal protection under the law. Title VII prohibits employers from discriminating in hiring or employment conditions on the basis of race, ethnicity, sex, etc The District Court and the Second Circuit ruled against the firefighters. It held that New Haven’s concern about being sued was reason enough to throw out the test results.

As George Will points out, the lead plaintiff, Ricci, presents an appearance problem for New Haven. To prepare for the exam, Will points out, he quit his second job, bought more than $1,000 worth of books the city recommended, paid to have them put on audiotapes (he is dyslexic), and took practice tests and interviews. He studied hard, sometimes as much as 13 hours a day, and got the 6th highest score.

New Haven was concerned with part of the law that bans employment tests and practices that have an adverse impact on members of one race. In fact, the federal government (specifically, the Equal Employment Opportunity Commission) has guidelines that hold that evidence of adverse impact occurs when the selection or promotion rate for one group is less than 80% of the group with the highest rate. As Steve Sailor points out, this means that if 50% of whites pass a test, then 40% of more of the minority groups must pass the test. If this doesn’t happen, then unless it can validate the test, the employer will be found to have discriminated. If the employer validates the test, then it will not be found to have discriminated unless those suing can show that there was an equally valid and less discriminatory test.

The Supreme Court should have an easy time with this case. The Individual Rights Foundation, Cato Institute, and others point out that the city blocked the post-validation study because it would likely validate the test. The evidence that there was an alternative, less-discriminatory test is laughable. In oral argument before the Supreme Court, New Haven had to admit that their evidence for such a less discriminatory test rested on the claim made by a competitor firm who hadn’t even seen the test New Haven actually gave.

As a policy matter, the argument against affirmative action, and against blocking such exams, is straightforward. Such policies severely harm people and this harm is probably not outweighed by the policy’s benefits.

Psychology professor Kevin Murphy of Pennsylvania State University points out that general intelligence is the single best predictor of job performance, but also the one most likely to have a substantial adverse impact on several minority groups. Murphy and others further point out that once general intelligence has been measured, the testing of more specific abilities may well add little in predicting who will perform well.

To see this, consider the following insights from Steve Sailor. Sailor, points out that as a group, black students on average score at the 18th percentile of white students on the graduate admissions test and at 20% on the medical admissions test. To admit large number of black students, standards are dropped, which then produces frustrating results. Using 2004 data from Richard Sanders of UCLA Law School, Sailor points out that 53% of black law students who enter law school fail to become lawyers versus 24% of whites. 40% of black law school graduates never pass the bar versus 15% for whites. Similarly, a 1994 study of medical boards published it The Journal of American Medical Association found that only 44% of blacks passed the medical boards for the first time, versus 84% for whites and 79% for Asians. Note that none of these observations depends on whether the differences are genetic.

Hiring less meritorious people harms people. In one study by economist John Lott, between 1987 and 1990, various policies, including affirmative action, decreased white male officers by 6% (6,912) and increased the number of Black male officers by 950 (5%) in the 189 cities Lott studied. He concluded that these policies produced 1,145 more murders and 30 more rapes. Similarly, a 1998 study in The Journal of the American Medical Association, 71% of newly licensed physicians prescribed potentially inappropriate medication and inappropriate medication is the 6th leading cause of death in the U.S. Admitting less able medical students likely exacerbates this problem. A similar pattern is likely true of firefighters. When you hire less talented people in life-and-death jobs, some people who would otherwise escape injury, get hurt and killed.

University of Maryland law professor Sherrilyn Ifill points out that New Haven has a history of discriminating in its fire department. She points out that black firefighters have repeatedly sued the city for discrimination in hiring and promotion and won, most recently in 2004. However, New Haven didn’t even try to defend its policy in terms of compensating for past discrimination because it knew that one cannot compensate one person for what was done to another. Nor did it rest its argument on the value of diversity, a common justification in educational contexts. So it is not clear what reason it thought outweighed the increased risk to its citizens of hiring less competent firefighters. However, even if could have cited one, it is unlikely to outweigh the greater risks to its citizens.

New Haven’s weak legal argument and even weaker policy argument will likely result in the Supreme Court reinstating the test results. The case highlights the real tradeoffs in death and injury that results from affirmative action.

There is an important addendum to this case. The Obama administration backed New Haven. President Obama then nominated Sonia Sotomayor to be a Supreme Court Justice. She served on the appellate court that summarily dismissed the firefighters’ claim. Obama and Sotomayer will act to preserve race preferences no matter how shaky the case and in so doing are pitting some racial groups against others. Wherefore by their fruits, ye shall know them.

13 May 2009

Constitution: Fourth Amendment

The Objectivist
The Supreme Courts Reins in the Police
Dunkirk-Fredonia Observer
May 11, 2009

In Arizona v. Gant, 556 U.S. ____ (2009), the Supreme Court faced the issue when the police can search a car. On August 25, 1999, five police officers arrested Rodney Gant for driving on a suspended license. They handcuffed him and locked him in a patrol car. They then searched his car and found a gun and a bag of cocaine in a jacket on the backseat. He was charged with possession of a narcotic drug and possession of drug paraphernalia (if you can believe it, the bag in which the cocaine was found). My guess is that Gant legally owned the gun, otherwise he likely would have been charged with that too. When asked in court why the search was conducted, one of the officers responded “Because the law says we can do it.”

Gant moved to suppress the evidence on the basis that the warrantless search violated the Fourth Amendment. This Amendment states that people have a right against unreasonable searches and seizures of their person and property. It also asserts that a warrant allowing such searches and seizures requires probable cause and that probable cause requires an oath or affirmation that describes the place to be searched and the persons or things to be seized. The trial court nonetheless gave Gant a three-year sentence. The Arizona Supreme Court found that the search violated the Fourth Amendment and threw out the evidence.

The Supreme Court began its analysis by noting that under the Fourth Amendment, warrantless searches are unreasonable, although there are exceptions. One exception involves a search accompanying an arrest. The Court had previously held that this exception is justified because it was necessary for keep officers safe and prevent evidence destruction. It noted that when it comes to searching cars, this exception allows for a warrantless search of the person who is arrested and the area in which he might reach to get a weapon or destroy evidence. See Chimel v. California, 395 U.S. 752 (1969).

Arizona argued that an earlier Supreme Court case, New York v. Belton, 453 U.S. 454 (1981), created a wider exception. It argued that Belton allows police to search a car interior following any routine traffic offense even if the person under arrest can’t access the vehicle and even if there is no reasonable basis to believe that the interior has evidence of a crime. In effect, it asserted that traffic arrests make it unnecessary to get a warrant. As part of its argument, Arizona claimed that this bright-line rule allowed for more effective law enforcement. It also claimed that drivers have limited privacy interests. This is an odd claim given that it would allow the police to search every purse, briefcase, or travel bag in the passenger area following arrest for any traffic infraction.

The Supreme Court affirmed the Arizona Supreme Court’s decision to throw out the evidence. It held that, on this exception, a police officer who lawfully arrests a vehicle occupant or recent occupant may search the passenger compartment only if (1) the arrestee could reach the passenger area or (2) the officer has reason to believe that the vehicle contains evidence of the alleged crime for which the person was arrested. It reasoned that in other cases, a warrantless search is not justified by the concern that the arrestee might grab a weapon or destroy evidence. As a side note, the majority position was an unlikely combination of conservatives (Justices Scalia and Thomas) and three liberals (Justices Stevens, Souter, and Ginsburg).

In his concurrence, Justice Scalia pointed out that Arizona’s argument was unrelated to officer safety because the driver has already been arrested and removed from the car. He noted that an earlier case allows police to search the passenger area if no arrest is made when there is a reasonable suspicion that there are dangerous weapons that endanger the officers. See Michigan v. Long, 463 U.S. 1032 (1983).

The dissent, written by Justice Alito, and joined by Justices Roberts, Kennedy, and Breyer, argued that the case conflicts with clear language in a previous case (Belton), and would make police officers learn new rules. It also noted that it is mysterious why the Court required that the police reasonably believe that the vehicle contains evidence of the crime that brought about the arrest rather than probable cause of it. The suggestion is that the majority was uncomfortable with their reasoning, so they watered it down by using a lower standard.

To see how far the privacy-invasion has gone, note that police can arrest drivers for the most minor of reasons and even on obvious pretext. The American Civil Liberties Union (ACLU) notes that the police may arrest a driver or passenger for any offense committed in their presence, no matter how minor. This is true even if state law permits no arrest. See Atwater v. City of Lago Vista, 532 U.S. 318 (2001) and Virginia v. Moore, 218 S. Ct. 1598 (2008). Because this includes vehicle code infractions and speeding and because most drivers have or do one of these, the police can arrest pretty much anyone they want. The ACLU notes that even if there is irrefutable proof that the officer had no interest in the minor offense and wanted to use the stop as cover to search someone’s car, the arrest is still legal. See Whren v. United States, 517 U.S. 806, 813 (1996). Once stopped, police can search the handbags, briefcases, travel bags, etc. not only of the driver but also any of the passengers.

It is disturbing that such disparate groups as the state of Arizona, police special-interest groups (e.g., National Organization of Police Organizations), and four Supreme Court Justices wanted to endorse this blank check for warrantless searches. Their zeal to pat people down and invade their car and belongings has no support from Constitution’s text or structure (how the parts of it relate to each other) or the intentions of the people who framed and ratified it. It’s clear that far too many judges, legislators, and the police-officer groups view the Constitution as an annoying speed bump in their pursuit of drugs and guns.

This case should have been an easy one. The good news is that a fragile majority of the Supreme Court got it right.