well, you know, i have just a feeling that i am really dumb...one of those awful questions my ex-husband used to ask me was:"what if (women, blacks, etc) really are dumber than white (men like me) people? Then would it be better to coddle them (not tell them how dumb they are so that they will get over it quickly) or tell them the truth (how really dumb they are because they stupidly chose to be born other than white males)?"

Of course, he could never see how that might create a self-fulfilling prophecy. Tell people ahead of time they are really dumb, they won't bother to compete against the truly superior white males. Then the superior white males never have to prove that they are superior (isn't what all this whining about not picking white males is about, really?) except to each other.

Jeffrey Rosen's hatchet job really is appalling and has the feel of a coordinated hit job.

Rosen is an idiot, which may explain why he's still at the sinking TNR after all these years. he feels compelled to write an article even though he hasn't really done the necessary research. Sounds fishy, at worst, numbskulled, at best.

Carol,
I'm going to assume your dumb for having been married to that guy. But not so dumb as to have stayed married to him.

I don't know, but when I think of "dumb and obnoxious", the National Review comes right to mind.

I don't see these two cases as being at all analogous.

There is no reason whatsoever to think that Judge Sotomayor is not qualified for the Supreme Court. Any criticism of her intellectual output needs to be based on specific facts, and needs to explain how someone of allegedly subpar intellect managed to graduate from Yale Law School - which has the highest average LSAT scores in the country. Moreover, this isn't just any job - it's one of the 9 most important judicial positions in the nation, and there really is some value to having a broad spectrum of representation. Since there are numerous candidates who meet the basic requirements for the position, it is reasonable to choose one from an important and underrepresented minority group.

The Ricci case is completely different. The fire department created a test and had it certified free of bias. No one complained about it before the fact. After the test results were revealed, they were overruled because the outcome was politically embarrassing. That's quite a different situation, and I think it is very difficult to defend.

I think more consideration needs to be given to the extent that affirmative action anxiety is driven by our increasingly winner-take-all society. If good middle-class jobs were easy to come by, wouldn't there be less hand-wringing about affirmative action?

hmmm.. Ezra.. this is a horrible post. You fail to address the legitimate concerns of Frank Ricci, and more importantly, the ironic role that Judge Sotomayor played in the case at the appellate level.

Almost seems like a hit job.

There's no such thing as graduating "summa cum laude" from Yale Law.

It's a pretty good post, despite completely misstating the facts in Ricci. The point of the post, about the form discrimination often takes nowadays, and is taking in the case of Sotomayor, is good.

Regarding Ricci, ironically enough Adam Serwer has fallen victim to the right-wing conventional wisdom about the facts of the case! Believe me, Adam, I think the four liberal justices on the Supreme Court, and the seven liberal judges on the Second Circuit including Sonia Sotomayor, would be very surprised to learn that there was an "an archaic affirmative action law that throws out the test if only white takers pass"! If that existed, the case would be quite different. Ricci would win unanimously. No. What happened here was that New Haven, whose fire department by the way has a long history of discrimination against blacks, administered a test. The city's lawyers then advised it that that test had a disparate impact on black applicants, and (here's the key) could probably not be justified according to "business necessity" and "job relatedness," because it wasn't really connected to any measure of performance of the job, so therefore, the city would be subject to a lawsuit under a "disparate impact" theory if it went with the test. So, the city abandoned the test. And the white firefighters sued. Note that there was not an archaic law saying no tests white people pass are allowed (Even Scalia would not summarize the case that way, but I'm sure plenty of conservative commentators will).

"Disparate impact" in general is NOT an "archaic" law -- I hope that wasn't what you meant. It's a foundational and central part of our anti-discrimination regime. It's vitally important today to be able to file discrimination suits against purportedly "neutral" requirements that actually stack the deck against one group or another, yet can't actually be justified in terms of business necessity and job relatedness. In police and fire departments, for example, many women have sued about "neutral" height and weight requirements that exclude a few men and nearly all women, despite the fact that there is no evidence the women aren't just as good at doing the job (or that size makes any noticeable difference in the effectiveness of police). Minorities have often brought disparate impact suits against promotion systems based exclusively on paper-and-pencil memorization tests when those tests have no demonstrable connection to job performance. That's the kind of suit that was at issue in this case. New Haven itself concluded that there wasn't a justification for its test -- that it didn't really do a good job at all of showing who would be the best officers. Otherwise the city would have stuck by its test.

So: please read the facts in Ricci before you suggest that there was that right-wing fantasy, "an archaic affirmative action law that throws out the test if only white takers pass." That's just spin you're swallowing. (If that was the law, every judge who saw it would strike it down.) Disparate impact law is something much subtler and closer to the phenomenon you're actually writing about. It's law designed to get at the cases in which discrimination manifests itself not as bias against particular individuals, but as setting up requirements that have a skewed effect on different groups and are not job-related. The law keeps employers from putting up unnecessary and pointless barriers by holding them to a certain standard of using tests that connect with performance on the job.

Also, the Ricci case is not an "affirmative action" case, although again, conservative commentators will say it is because they (a) don't understand the concept of disparate impact, and (b) simply can't believe that the test in Ricci was not a fantastic predictor of performance. Indeed, for some commentators, the fact that whites passed and blacks didn't SUPPORTS that premise that it was a good test, because you know, the smart people passed.

Adam Serwer has fallen victim to the right-wing conventional wisdom about the facts of the case! Believe me, Adam, I think the four liberal justices on the Supreme Court, and the seven liberal judges on the Second Circuit including Sonia Sotomayor, would be very surprised to learn that there was an "an archaic affirmative action law that throws out the test if only white takers pass"!

I'm gonna go out on a limb and guess that Adam doesn't really believe that, any more than he believes that life is stacked against white men, who just can't get a break.

So Rizzo objected to a test that had a disparate impact on black applicants, and could not be justified according to "business necessity" and "job relatedness?

I guess they wouldn't object, then, if the fire department had a test asking about "the historical beginnings of Cinco de Mayo"? Would that also be fair?

Happy Cinco de Mayo!

BTW, WAPO has 2 black Op-Ed columnists: Eugene Robinson and Courtland Milloy.

"What happened here was that New Haven, whose fire department by the way has a long history of discrimination against blacks, administered a test."

You're leaving out the lengths to which New Haven went in order to construct a test free of bias. New Haven consulted with African American fire department officials during the process, and hired a consulting firm experienced in designing tests to meet Justice Department guidelines.

Elizabeth Taylor was one of my favorite actors/movie stars: talented and beautiful. One thing that really helped her career was that she didn't have to compete against Dorothy Dandridge for parts. More than 96% of supreme court justices have been White men because they didn't have to compete against women or people of color. Those days of unfair affirmative action are over.

The POTUS and White House Counsel will get to interview Sotomayor and they will assess her intellect. The gossip is not helpful either way.

Sophisticated genetic analysis reveals that John Derbyshire is, in fact, dumber than white, asian, black, hispanic, male, female, and transgendered people. He's also dumber than a number of barnyard animals.

This is a great post. Thanks.

One question...how are we sure that Sotomayor did not have affirmative action help in getting into YLS?

did affirmative action help her graduate from Princeton summa cum laude?

Lawyer, to your knowledge, has there ever been a pen-and-paper test devised that does not produce "disparate impact" amongst blacks and whites?

These are the sort of questions on the test:

When coupling hoses together, ___ 50-feet hoses and ___ 75-feet hoses will result in a length of 575 feet.

a. 5, 4
b. 4, 4
c. 5, 5
d. 4, 5

Racist questions to be sure, but shouldn't firefighters be able to figure out the answer to something like this quickly?

If the test-creators are really measuring something, what they term, g, disparate impact tests necessarily toss away our entire 100-year science of psychometrics. You can make that argument, but please make sure you do it honestly:

1. Never been a discriminating (as in, able to differentiate between good and bad) test devised that gave alternate results than Ricci

2. The science of psychometrics is entirely false, because it could explain these results.

"hmmm.. Ezra.. this is a horrible post"

Ezra didn't write this, you idiot.

Billaire,

Are you really asserting that a math test -- your example not mine -- will ALWAYS produce a "disparate impact" between European-Americans (whites) and African-Americans?

Your initial statement: "Lawyer, to your knowledge, has there ever been a pen-and-paper test devised that does not produce 'disparate impact' amongst blacks and whites?"

Isn't that exactly what the post is about? The "air-I-breathe" assumption that white people are "the smart ones"? How can this assertion be interpreted in any other way?

And if so, it's circular logic: you're attacking an article which points out this lese majeste assumption by making the assumption!

I'm afraid there is no other conclusion than that you are clueless in Gaza!

Anandakos,

Offer a counter example if you can, but any standardized test which requires intelligence shows the same "disparate impact": Asians perform the best, and blacks perform the worst. That's true of fireman tests, military aptitude tests, the SAT, the GRE, etc., etc.

That's the thrust of the problem here. The law doesn't acknowledge what 100 years of testing demonstrates, which is that the average black IQ is about one standard deviation lower than the average white IQ. That means that any test that demands a reasonable level of intelligence will show that blacks on average do a lot worse. Since the law doesn't acknowledge the difference in average intelligence, it assumes the difference in outcome is due to bias, even when that's not the case.

>

Lawyer -

On what do you base that allegation? In any event, are you aware that the City explicitly disavowed any claim that its actions in this case were an attempt to address a history of discrimination? Seems to me if there was such a history, the City would have raised the issue as even Justice Thomas believes that rectifying past discrimination is a "compelling" governmental interest that can, in appropriate cases, pass an Equal Protection clause strict scrutiny analysis.

The allegation to which I refer was of New Haven's purported history of discrimination in the Fire Department. Don't know why my cut and paste didn't take.

Wapo also has a black editorial page editor, Jonathon Capehart; though his gayness might make him functionally white. That was mean. Whatever the circumstances, he chooses to adhere to Hiatt orthodoxy.

What a bunch of cant. You're awfully dismissive (contemptuous even) of these firefighters' Constitutional right not to be penalized because of the color of their skin.

I wonder if young Adam is the son of Fortune Magazine managing editor Andy Serwer. They both went to Columbia (legacy admission?). It's interesting that this privileged white punk has become something of a specialist in matters of race (i.e., calling white people racist). Oh, and while I'm on the subject: Has the American Prospect ever been run by a non-white male?

I am still completely flabberghasted that a Jew, the recipient of the biggest affirmative-action boons in America, could write a column like Rosen. Lifetime security for the price of a small patch of skin. I'll take that deal!

Billare,

A) Yes, they would be able to use a math test that discriminated between groups IF THEY COULD SHOW IT WAS RELATED TO JOB PERFORMANCE. That's what the law says. But they couldn't in this case, which is why they lost. Let's be blunt about this: They were not able to show that people who did very well on this test were any better fire people than those who didn't do as well on this test, whether or not the questions include the word "fire hose" or not.

B) Psychometric testing does not show that blacks always do worse than whites, it shows that people with social disadvantages, worse educational opportunities, etc, do worse. In the US these factors are correlated with race.

It also shows that people from groups who are stigmatized as doing poorly at those tests often improve their performance when it is made clear to them that the particular test they are being given does not show biases - it removes the "stereotype threat" that impairs their performance.

I generally agree with you but here's the problem:

The *very hour* the news broke that there would be an opening on the court, the liberal yakkertown factory had gotten the message out that "Obama must appoint a minority woman" like "Sotomayor" *rather than* "Obama should appoint Sotomayor because xyz."

That woman never had a chance.

Which just means it's time *for you*--yes *you* *you* *you*-- to grow the fuck up for the good of the collectivity.

Yeah, they'll contest her anyway--but she doesn't need your "help" turning her into the next affirmative action case.

I don't understand your egotistical need to engage in this shit. Go to graduate school if you have nothing else to say and you can't get a day job.

Rosen has impeccable liberal credentials and yet even he STILL can't criticize a minority without be suspected of being a racist? Geez! Can a white male ever legitimately criticize a racial minority, or is it simply a nonstarter? And I hope you accusers/insinuators do recognize that if this is the case, any hope for progress in race relations is doomed (but perhaps that's already a foregone conclusion for you, which is really saddening . . . ).

It is a foregone conclusion. Don't worry, by 2042 we will eclipse you, and by 2100 we'll show you what it was like to be a minority.

Luis, I grew up in Southern California so I already know what it feels like to be eclipsed: lots of crime, horrid schools, dirty cities, and unsupervised children running wild.

"The Frank Ricci Affirmative Action case has become something of a cause celebre for old white guys in Washington"

You stupid racist

Luis is a prime example of why we must seal the border and deport the illegal aliens as soon as possible. If it is so terrible to be a minority, as non-whites always tell us, white Americans should be fighting as hard as they can to prevent this from happening. The media propagandists spew lies saying that it will be a wonderful paradise with a non-white majority, but we all know this is false. Look at California today for the joys of diversity. If white people become a minority in the United States, it will the end of our country as we know it. You can see the venom non-whites like Luis spew toward us. Do not let them destroy the country our ancestors built.

@ Close the borders, etc.

fixed your typo.

"...our ancestors stole and killed for."

We guess the words “imperial” and “colonial” are far more evident than the mass media detritus in the United States colony allows its grunt camp populace to even imagine. They are left with the impression it's all about our Spanish allies in a global occupation.

Where the GOP’s knees grew weak with distaste, the racially motivated Obama camp has lunged forward. From skirmishes in Iraq to skirmishes in Pakistan. From Gitmo to Guantanimo, and Guantanimo to Gitmo. From Blackberry Paleslinian infanticide to smug snears in every town hall. Well, that’s something new! Same old intelligence crew. So who calls the shots? Who makes our beds warm … or cold? Who turned out the lights? Who will make you, reader, understand what is a Caucasian grunt camp, and that snear still bites into a hemmorhoid bigger than the State of New York.

My personal family colonial business connections make it clear what is going on. Dutch shipping (remember that 2nd amendment you so like to pervert) and British real estate have banged you up for what? Haliburton, in case you stundly forgot. Bang-bang-bang, fill your ears with deadly sounds all around your homes and schools, parks and other places of “peace (?)”. Make yourselves more idiotic than the Taliban (((well guess you already are, if that’s where you’re at)))! Let’s see now, a Sotomayor congratualtion! Grunt-grunt-grunt!

May we rephrase that for the CIA desk, “disconnected United States colony”. You can run with the rest of it any way you like, as long as you’re not pretentious. So, in closing, what would be the IQ of a well intentioned linguist (similar in Caucasian culture to "racist" - only Caucasians can squabble so incessantly) who supposed his colony was something he had built and paid for. Would King Henry lock him up in chains? What about Elizabeth? Oh well. We all got drafted into ... some colonial frame of mind. Close and deport ... what? Ruff-ruff-ruff, go fetch Pakistan, or whatever. Read the page this decorates and always vote, for example.

independence
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"Be Secure!"

re:FRANK RICCI AND SONIA SOTOMAYOR.
Here again it seems the Colony Caucasia poison is rotting another head. Imperial really does overlay another layer of obnoxious colonialism for those who blindly associate "white" with english (or pro crusade jewish) and definitely NOT spanish, hispanic, especially with a good sun tan.

Adam Serwer said,

"Affirmative action was installed as a corrective against bigotry, a way to ensure qualified people were not passed over because of arbitrary conditions of their race."

But the City of New Haven did "ensure qualified people were passed over because of arbitrary conditions of their race". No one disputes the test was fair; no one disputes the test was graded properly; thus, no one disputes that the plaintiffs qualified for the promotions based on the conditions specified in advance by the City.

They were denied promotions due solely to their race. And Sotomayor is o.k. with that. If this was a test by, say, Walmart for new managers and it then refused to make promotions after all the highest test scorers were Latinas, do you think Sotomayor would have a different opinion?

Are there any Democrats with the courage and honesty to admit that, if confirmed, Sotomayor will be the first avowedly racist justice on the Supreme Court in more than a century?

For Carol, who said that if blacks are told that they are dumber than whites that it could be a self-fulfilling prophecy: So, if we just tell blacks they're no good at basketball, we'll eventually have an all-white NBA? After all, it could be a self-fulfilling prophecy!

Re: Lawyer's comments above:

Try reading the majority opinion of the case rather than Ginsberg's dissent. Moreover, to get the actual backdrop of the underlying facts of the case, look at Alito's concurrence. You may find that the city capitulated to racial blackmail.

Hey,you will do better.your posts have inspired me! - I love the way you directly get to the point, and then work outwards. I’ve been trying to do figure out what I want to say about ,that would allow me to do exactly the same thing.

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I haven’t read the full article yet, but couldn’t wait to comment on the audio slide show. Well done. You shared so many moving thoughts and observations in just a brief slide show.