Tuesday, December 8, 2009

Harris and West-Faulcon on Ricci

Cheryl_harrisWestfaulcon2Cheryl Harris (UCLA) and Kimberly West-Faulcon (Loyola LA) have posted their new article, Reading Ricci: White(ning) Discrimination, Race-ing Test Fairness on SSRN. Here's the abstract:

This Article explores both the doctrinal and ideological mechanics of how the Supreme Court’s decision in Ricci v. DeStefano “whitens” discrimination and “races” test fairness. A close reading of the five-vote majority opinion reveals how in significant respects all claims of race discrimination are not evaluated on a level playing field. Ricci converts efforts to rectify racial inequality into white racial injury in two distinct but interrelated ways: by whitening discrimination - that is re-framing anti-discrimination law’s presumptions and burdens to focus on disparate treatment of whites as the paradigmatic and ultimately preferred claim; and by race-ing test fairness - that is, treating efforts to use assessment tools that better measure merit and produce less racially disparate results as racially disparate treatment of whites. Ricci whitens discrimination in part by treating all forms of racial attentiveness - here the City’s assessment of the racial impact of the tests - as racial discrimination. The authors highlight that racial attentiveness and inattentiveness - as distinct from colorblindness and race-consciousness - help illustrate that the relationship between taking account of race and discrimination is more nuanced and complex. Not all racially attentive conduct is discriminatory; nor is all racially inattentive conduct non-discriminatory. The authors further consider the facts in Ricci not only through the frame of “reverse discrimination” that predominated in popular accounts, but also through the lens of a Title VII disparate impact case like that which the City of New Haven feared might have been filed by minority firefighters. The authors use statistical analysis to examine recreated promotional lists at the heart of such a lawsuit in order to evaluate the effect that the City’s failure to comply with professional standards for proper test design and test use had on this group of potential claimants as well as other white firefighters who were not part of the Ricci plaintiff class. From this vantage point, instead of identifying the most qualified candidates, New Haven’s exams unfairly and unnecessarily reproduced the fire department’s racially (and gender) skewed status quo. Nevertheless, in Ricci, the City’s efforts to ameliorate this racial imbalance were themselves treated as racially rigging the results, exemplifying how the pursuit of fair testing was race-d.

It's an important contribution to our understanding of the Court's current understanding of discrimination, and I can't wait to read it.

MM

https://lawprofessors.typepad.com/laborprof_blog/2009/12/harris-and-westfaulcon-on-ricci.html

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Comments

Blah blah blah - more mumbo jumbo to masquerade what is nothing but a plea for continuation of a race-based jobs welfare program requiring preferences for unqualified people under the feel good prose of "rectifying" past unfairness. You want the job? Then earn it - study and accumulate the necessary knowledge - case closed. Tell these two silly women to peddle this nonsense to their relatives - no one else cares to hear this crap anymore.

Posted by: Cas | Dec 18, 2009 10:47:53 AM

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