John Payton: Test was discriminatory

As I mentioned before, I was looking forward to the next Hardball with Chris Matthews where there would be an interview with New Haven firefighter Frank Ricci. I missed the show so I watched it on Harball’s official website where it is divided into three parts titled:

  • Reverse discrimination?
  • Taking the affirmative action battle to the top
  • Is America post-racial?

I am going to comment on the video that you see above.

Statement from City of New Haven: The city… would have faced a lawsuit under Title VII brought by African-American and possibly Latino firefighters if the city simply promoted based on the results of the exam. If it did not prevail in the lawsuit brought by minority firefighters, it would be faced with the prospect of taking away badges from those who thought they were rightfully promoted or figuring out how to provide an opportunity to those wrongly denied a promotion. Given that scenario, the often proposed solution of ‘promote first and figure everything out later’ is no solution at all.” (by Victor Bolden, Corporation Counsel, City of New Haven)

My comment: Title VII is from the Civil Rights Act of 1964 which you can locate by clicking here. On the bottom of the page click on the different numbers from 1 to 8, and you will be able to read the entire Civil Rights Act of 1964. What we need here is Title VII which starts on page 3. Click on the picture in order to enlarge it or you are not going to be able to read it.

Pay attention to Section 703 of the Civil Rights Act of 1964. It shows how tough that issue was in the 1960s:

Sec. 703. (a) It shall be an unlawful employment practice for an employer – (1) to fail to hire or discharge any individual or otherwise to discriminate against any individual to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual’s race, color, religion, sex or national origin.

So far there is nothing wrong with this section, and I fully support that language. However, that language doesn’t appear to matter very much when we read the rest of Section 703, or namely:

(e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees… to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where is religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enteprise…

Diversity is essential to the performance of the fire services,” said Dennis Thompson, lawyer for the International Association of Black Professional Fire Fighters. That statement of his looks very similar to the language of the last part in (e), doesn’t it?! Bona fide means “in good faith without fraud or deceit” or briefly: authentic, sincere, genuine. Thus speculators may argue that diversity is essential to the performance of the medical services which argument, I hope, will never be an employment practice, let alone reach the U.S. Supreme Court or any other court around the world. I already know about affirmative action for admission to a medical school which, I believe, is different from employment practices. It is something that I don’t agree with Pat Buchanan in the video clip titled “Is America post-racial?” in Hardball’s official website where he said that it was alright for colleges and universities to admit students whose parents had graduated from there, and after he figured out that his statement didn’t sound acceptable he immediately added “but they have to pass the test first“. Colleges and universities are businesses, and in my opinion it is up to them to decide whom to admit – as a result of which their reputation will rise or fall due to abundance, or lack of, alumni with great achievements in the future.

Other question on point is whether the City of New Haven is to be blamed for its action based on the results of the exam which results would have most likely created a lawsuit against the city brought by minority firefighters. In that case, the City of New Haven probably decided not to go through a trial for sure, and therefore accept the minority firefighters’ demands with the slim hope that the other firefighters would decide not to bring any lawsuit against the city on the basis of invalidating results from an official exam.

Now listen to the rest of the video and follow Chris Matthews and his guests’ words below. What you see in bold will be my comment wherever necessary, that is, wherever Chris Matthews didin’t add something I would have added.

Chris Matthews: How would you determine or argue that a test is flawed or discriminatory by the results of the test – who passes or fails, or by the questions asked in the test? How would you decide how a test is flawed?

John Payton: I think you look at bo[th]… all those things…

Chris Matthews: But they only looked at results in this case.

John Payton: No, they actually looked at the test, too… (So if you look at the results and see that African-American and Latino, and any other minority firefighters have failed it, then you figure out that it was flawed. What if only one minority firefighter failed it together with other white firefighters? Apparently their conclusion was solely based on race, not the results of the test as well.)

Chris Matthews: When? After they got the results.

John Payton: Yes, but then they looked back at the test. This test was used one time. This is the one time it was used, so there is no track record, and, you know, New Haven, 30% of the New Haven firefighters… are in fact African-Americans or Hispanics, so New Haven has experience with minority firefighters. 15% of the captains and lieutenants are African-American or Hispanic, so New Haven has experience with people who have command positions, just as you heard. So they have a test, they give it, and none of the African-Americans would have been promoted. And then they look at the test and see that some of the questions actually caused them some problems, and that’s when they decide there’s something wrong with this test. (Nobody says that African-Americans and Hispanics can’t be good captains and lieutenants but they have to pass the test first. Judging by his argument that New Haven has experience with African-American and Hispanic firefighters who have command positions, it looks as if the purpose of the test was to promote African-Americans and Hispanics at all costs.)

Chris Matthews: Can you give me a substantive critique of the exam?

John Payton: I can’t – and – but the reason for that is that the test itself is under seal and so none of us can actually go see that test.

Chris Matthews: How did you get informed that some of the questions were discriminatory by nature, not by the result?

John Payton: Yes, we have a few of the questions, I think three are discussed in the briefs. Some were about things like what’s uptown or downtown. There is no uptown or downtown in New Haven, and then we have some oth… (Then how had you come up with such question? You designed that test.)

Chris Matthews: Why would that have advantaged a white applicant?

John Payton: It may not, but it just shows that…

Chris Matthews: Where is it in fact discriminatory?

John Payton: Well, it just shows that the test may not be doing the work it’s supposed to be doing. What would the multiple choice test question be that would show you whether someone has command presence or not. This is a very sophisticated question. Everyone who takes it has been a firefighter for three years. The questions that you were talking about do you know to do this as a firefighter, everyone who takes it is a firefighter. The question is who should be a captain or lieutenant, who has command presence, and that requires a very sophisticated set of questions and interviews, etc. and this test didn’t do the work it is supposed to do. (You designed the test, so how in the world had you not jumped to that conclusion back then? Apparently you are the one who is not doing the work you’re supposed to be doing.)

Chris Matthews: Was that in the oral part or written part?

John Payton: We believe it was the written part…

Chris Matthews: … multiple choice answer?

John Payton: A lot of the other jurisdictions use the multiple choice part to a much lower degree than did New Haven. They used it 60%, other used it 40%.

Chris Matthews: Let’s be apriori this time, instead of ex post facto, OK? You designed the test, sir.

John Payton: Yes, yes.

Chris Matthews: Should we have multiple choice test?

John Payton: I think it should have a much lower presence in…

Chris Matthews: Why is multiple choice by its nature discriminatory against African-Americans?

John Payton: I don’t think it’s discriminatory… (In the beginning of Hardball, John Payton was talking about the city’s experience with minority firefighters being captains and lieutenants, as you have already read above. Actually he does think that it’s discriminatory but tries to hide it  for the sake of political correctness.)

Chris Matthews: Then why should you – why did you just say apriori it should be lower percentage of the judgment?

John Payton: Because I think that the most important factor here is what you learn in the interviews, just what you were saying earlier that you want to talk to someone, you want to see what their experience is, you want to see how they have command presence, and I think you learn that by talking to someone. When you demote the significance of that you let something that I think is less relevant come into play. What was really flawed with this test I don’t think you or I or any of us on this can actually say because we haven’t had the test to actually analyze it. There’s an amicus brief in this case by a group of experts of tests who say that this is not the way that you would go by this test or the waiting of this test, if you wanted to actually measure for command by present. (What is the way, though? And wasn’t that test supposed to have been checked several times?!)

Chris Matthews: …What[‘s your reaction] do you say to that?…

Frank Ricci: The reaction is, the multiple choice part of the test is critical. You have to have a definitive understanding for fire behavior, building construction. Experience is maybe the best teacher but… you have to have a basis for that experience to make command decisions to keep the firefighters safe. (I agree. Besides, that definite understanding can’t be found out through talking. Nobody demotes the significance of experience. It’s just that it is overestimated by John Payton. Taking a leadership position in a responsible job such as that of a firefighter is not solely about giving orders but rather about making correct decisions.)

Chris Matthews: Your response.

John Payton: Look! I think that everybody wants everyone who has, you know, as a captain to be qualified and able to do it, and everyone who takes it… everyone who takes this test has been a firefighter for three years. Every firefighter has an interest in this being a fair test to everyone.

Chris Matthews: … I agree… I think the best lawyers did not come out who did the best bar exams. I don’t think they come out of the Ivy League schools. There’s a lot of moxy in life, right?

John Payton: Of course.

Chris Matthews: But we live in a world that has objective questions that you have to answer, and there has to be a certain body of knowledge that you master before you use a moxy. Do you accept that?

John Payton: Of course. When you…

Chris Matthews: That’s what you just said.

John Payton: When you were picking someone to be a colonel in the army I guarantee you don’t give him a multiple choice test and say ‘that’s our colonel’. You actually look to see what they could do when they were leading men, who would follow them, what’s the command presence, and that’s how you pick leaders. This was about who’s gonna be captains and lieutenants. (As I said, in order to be a leading man, you must know about right decisions, not just how to command.)

Chris Matthews: Fair enough.

My comment: Such cases, and such judicial decisions, create an opportunity for the Republicans to revive and take some political offices away from the Democrats. Don’t pay attention to what Keith Olbermann and Rachel Maddow are saying about the GOP: that it must become moderate and/or turn left. The American people is starting to disapprove of the heavy spending that the federal government is doing these days, and of some Democratic state leaders as well, so there is no time to waist for the Democrats.

In order for a multicultural society to function well there must be not just equal rights, but equal responsibility as well. Whatever discrimination there is in the today’s multicultural society, it is dysfunctional to all because it segregates people in an atmosphere that is supposed to do the exact opposite.

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