Tuesday, July 17, 2012

Fireman, Save My Child

But first, make sure your racial quotas have been properly filled. A federal judge in New York has ordered the New York City Fire Department to make major changes to its hiring and promotion policies. The Clinton appointee ruled in a case in which minority applicants failed the department's written tests and sued based on racial discrimination. Apparently the judge creatively ignored the 2009 US Supreme Court decision in Ricci v. DeStefano (the New Haven firefighters case).

In an earlier preliminary ruling, Judge Nicholas G. Garaufis had shown his impartiality by declaring that the NYFD was “a bastion of white male privilege.” To punish those white elitists, Garaufis set down a whole slew of requirements and strictures. First, the department must pay back pay to the unsuccessful applicants, retroactive to the date they first applied. That's about $129 million. Then it must revise the written exams. The department must hire new firefighters at the following rate: two of every five must be black, and one of every five must be Hispanic in order to reach the court's quota of 186 black and 107 Hispanic hires.

Continuing his flight of fancy, the judge ordered not only compensatory money damages, but “non-economic” damages as well. He defined that as the intangible benefits of “prestige, job satisfaction, camaraderie, unique excitement, enjoyment of flexible scheduling, unusual employment stability, feeling of security derived from retiring with a full pension and lifetime medical benefits, and the potential for career advancement.” Wow! I think I'll apply.

Garaufis based his decision on the Civil Rights Act of 1964, Title VII. He found that the written exams had a disparate effect on the minority applicants. That is an established fact. If it weren't for the Ricci case, that would have been enough. But Ricci once and for all shifted the burden of proof to the plaintiffs to prove that the disparate impact is negligent and has no rational basis. That was scarcely even addressed in Garaufis's opinion. While blithely dancing around the Ricci decision, Garaufis relied on his own pre-Ricci decision slamming the FDNY.

Sounding more like a social engineer than a legal scholar, Giraufis babbled about fire departments “reflecting the communities they serve.” Why not go the whole way? All firemen in Harlem and Bedford Stuyvesant should be black and most firemen serving Park Avenue shops should be white. Firemen for the Upper West Side should be both white and largely Jewish and/or gay. Maybe we should even add political party affiliation to the mix. Silly enough for you? I always thought firefighters were there to protect human beings, regardless of race, creed, color, national origin or prior condition of servitude. But what do I know?

And to put an exclamation point on his ruling, Garaufis ordered that the failed applicants be granted retroactive benefits, promotions, and seniority, something that was directly addressed in the Ricci case. So just remember, if you're visiting New York City, the people who will be rushing to your rescue when the hotel bursts into flame will be people ordered to be hired by a political judge after getting a whopping 26 or more answers right on a 100 question exam. Shout “help” but don't write it on a sign to be held up, because the fireman may not be able to read it.

I'll be glad when this is finally resolved so we can move on to Philadelphia and address the racial imbalance in poll watchers.

45 comments:

Joel Farnham said...

LawHawk,

I am starting to get numb with all the BS coming out of liberals. It almost is as if all liberals got together and decided to "correct" whatever perceived injustices around them. Here it is "fixing" the perceived injustice of incorrect balance of race.

When will it stop?

Mycroft said...

If FDNY should reflect the society they serve, then 30% of the firefighters must be children.

Anthony said...

Can the fire department get some sort of emergency injuction against the ruling? Also, how long does an appeal normally take in such cases?

Anthony said...

Honestly, the legal decision in recent years which struck me as doing the most harm and being the most activist was the SC's decision that life sentences for underage criminals are cruel and unusual (it didn't get a lot of attention because it was handed down in the same week as the Obamacare decision).

That decision will set a lot of monsters that deserve to die in cages free unless the system finds a creative way to circumvent the decision (for example, stacking a bunch of finite, consecutively served sentences on young rapists and murderers which in practice amount to life in prison).

Below is a good article on the subject.

http://townhall.com/columnists/jeffjacoby/2012/07/16/life_terms_for_teen_killers_neither_cruel_nor_unusual

tryanmax said...

Mycroft, the first place my mind went is to wonder if half of the firefighters are obese? If firefighters are to reflect their communities, that might go further than anything Nanny Bloomberg can come up with to shrink waistlines. Of course, obesity mostly affects poor and minorities so...

T-Rav said...

I'm just going to say it. The NYFD should openly refuse to comply with the decision, and dare the judge to do something about it. I know all the objections to such a course of action, but when the judicial branch is directly harming the country through their idiocy, I think they've lost the right to be shown any deference.

AndrewPrice said...

I don't know enough about what evidence he found to support his finding of discrimination to know if this will be upheld or not, but back damages are pretty common as are non-economic damages. This seems pretty standard for anti-discrimination suits actually.

Tehachapi Tom said...

Hawk
The exam potential firepersons take is difficult beyond reasonable. They are tested on MECHANICAL APTITUDE, probably to determine if they can operate an ignition switch. SITUATIONAL JUDGMENT AND REASONING, maybe to show they know how to put on their pants and hat correctly. DIRECTIONAL ORIENTATION, why this I don't understand after all running into a fire is the job isn't it. READING COMPREHENSION, this is useless after all you can't see well enough to read anything in a smoke filled building. BASIC MATHEMATICS, I is 1 you is 2 that is basic enough isn't it. GRAMMER, VOCABLARY, SPELIN are so over rated.
Any thing they need to know can't they jus ax some one?
Did Garaufis pass the bar based upon the same lowering of the exam and advance to become a judge by some set of rules modified to promote the incapable?

Kit said...

Didn't the SCOTUS already rule against this sort of thing?

T-Rav said...

Anthony, I've known a lot of juvenile troublemakers growing up, and the sad fact is--it sounds awful, but oh well--the teenagers who do these sorts of things are already broken. The vast majority of them will be locked into this pattern of violence for all their lives. I don't have any personal experience with murderers, but I know that a lot of the high schoolers who were getting in fights and "hanging out with the wrong crowd" went on to burglary and drug dealing and the like as young adults. People can change, but it doesn't happen often.

Life sentences for teens sound harsh to some, but in many cases it's probably for the best.

BevfromNYC said...

There have been several letters to the Editors of our area newspapers from "minority" firefighters who actually passed the test. Their advice was to study like they did, then they could pass and move on to the next step. They did not see anything in the test that was discriminatory except that one had to study in order to pass.

I believe there is also a countersuit pending filed by non-minority (a/k/a white, jewish, italian, irish, etc.) applicants who passed all the requirements, but are precluded from hiring because minority hires get priority.

K said...

@Kit: That was the old SCOTUS. Now we have the all new SCOTUS containing the miracle ingredient, "LeftaRoberterium" and it's a whole new ball game.

Kit said...

Apparently New York City is appealing the ruling.

LawHawkRFD said...

Joel: As long as there are liberals to appoint liberal judges, this will go on.

LawHawkRFD said...

Mycroft: Age discrimination is a very serious issue. LOL

LawHawkRFD said...

Anthony: Anything's possible, and that is one of those possibilities. This appeal should go fairly quickly, but much of the damage will already have been done. The original filing in the Ricci case was in 2003 and was heard and decided by the Supreme Court in 2009.

shawn said...

When did "discriminatory" become a bad word? If you think being disriminatory is bad, then I have some moldy meat for you. Or perhaps you would like a bottle of warm urine, it's sterile! How about this nice dollar instead of a fiver? After all, they are both small, greenish pieces of paper. And of course doesn't want to be treated by the doctor who graduated at the bottom of his class? And I know you had your heart set of a pristine theatrical edition of , Star Wars on bluray, but how about a nice copy of The Clone Wars instead? They were both made by Lucas himself for pete's sake.

LawHawkRFD said...

Anthony: That decision will have repercussion for decades to come. But it is part of the ebb and flow of the larger death penalty debate. At the current time, the anti-death penalty advocates are in the ascendancy. The penalty is always chipped away at on the edges (poor teenagers getting the ultimate penalty is just one of the arguments), then when after years of increased violent crime rates by recidivists, the pendulum swings the other way. Part of the problem is that to be effective, any penalty must be quick and sure. Most death penalty states have done little to carry out the policy, and appeals turn death rows into life rows as endless appeals are filed and heard. Mumia abu Jamal will die of old age before that death penalty is implemented.

Link: Teen Killers and the Death Penalty.

LawHawkRFD said...

tryanmax: That's the problem with slippery slope arguments. Sometimes they're highly accurate. In order to do what is politically-correct and expedient, common sense and good policy get tossed out the window.

LawHawkRFD said...

T-Rav: My sympathies with open rebellion are with you, but as an officer of the court I have to favor the appeals process. LOL

LawHawkRFD said...

Andrew: As a general rule, the way the damages were assessed is not atypical. But this judge went far beyond the usual damages in every category, largely out of personal pique. This same judge issued three similar rulings before Ricci was decided. Each was more draconian than the one before it. He has a personal beef with the FDNY. FDNY complied with all his prior orders, revised the written tests within his guidelines, and the results remained pretty much the same. So instead of accepting the findings in Ricci, he simply bootstrapped on his own prior rulings, and decided the current case without considering the disparate impact factors set out in Ricci. This is a rogue judge with a personal grudge and a political agenda. He is determined to impose quotas, with or without the Supreme Court.

LawHawkRFD said...

Tehachapi Tom: The judge is very intelligent, but he isn't very smart. His ruling is based on the rules pre-Ricci, and he expressed his own personal prejudices against the FDNY and "white privilege" in the decision. I see the possibilities of reversal on grounds of prejudice alone as quite good. And given the findings and opinions in Ricci, I find the possibility of success of an appeal on the law to be excellent.

Anthony said...

I found an article which indicated that the appeal has already happened (it happened in June, over two years after the judge's decision, which was handed down in January of 2010).

----------
http://www.businessweek.com/ap/2012-06-27/3-judges-hear-landmark-fdny-discrimination-case

In a courtroom packed with several hundred spectators, city attorney Deborah Brenner urged the 2nd U.S. Circuit Court of Appeals panel in Manhattan to return the case to a different judge in Brooklyn federal court for a trial. The court was unlikely to rule for several months.
-------
And I found another article which detailed the city's actions in response to the ruling.
------

http://www.nytimes.com/2012/05/09/nyregion/new-york-fire-department-gains-minority-and-female-applicants.html

The Justice Department sued the department in 2007, charging that its exam used questions that were unfairly biased in favor of white applicants who may have had a better education or been more accustomed to standardized testing than their minority counterparts.

The firefighter exam is administered every three or four years. The Justice Department filed its lawsuit a few months after the last testing period, starting a long and sometimes contentious legal process between the city and the judge overseeing the case, Nicholas G. Garaufis of Federal District Court in Brooklyn.

Judge Garaufis ruled that the 2007 exam was discriminatory and banned the city from hiring firefighters unless it adhered to a hiring method he proposed. The city rejected the judge’s proposal, saying it amounted to creating racial quotas.

As a result, the city declined to hire any new firefighters, which has led to some understaffing. The department is short about 500 firefighters, which has cost it roughly $41 million in overtime pay for current firefighters and other related expenses since the 2010 fiscal year, a deputy fire commissioner, Francis X. Gribbon, said. Fire officials expect to hire as many as 3,500 firefighters over a four-year period starting next spring.

LawHawkRFD said...

Kit: You're referring to the Ricci case, which I covered in the article. This is one of those cases that I've talked about where the surrounding facts seem different but the principle is identical. Ricci was a "reverse discrimination" case, in which white firefighters who scored higher than minority firefighters on written exams were denied promotion in order to give the promotions to minority applicants to satisfy racial quotas. The Supreme Court found that there was indeed a disparate impact, BUT also found that the impact was both unintentional and based on rational standards. Disparate impact by itself is no longer sufficient reason to impose racial quotas, a fact this judge missed. And just as a fun historical note, the case totally and pointedly reversed the decision of Appeals Court Judge Sonia Sotomayor, now a Supreme Court Justice appointed by Obama. Even Justice Ruth Bader Ginsburg weighed in on just how idiotic Sotomayor's legal reasoning had been in the lower court ruling.

LawHawkRFD said...

T-Rav: The truism involved is that we are products of our environment. Some rise above it, most don't. I'm a believer in redemption, but it doesn't genuinely happen very often. Age has very little to do with it, though I must admit that I can see where a young teenager could commit a singular violent act though he had no prior history of violence and little potential for future violence. That simply isn't addressed in the much broader decision that holds that all violent teenagers are redeemable and therefore should never be subject to the death penalty.

LawHawkRFD said...

K: I don't read "evolving liberal" into Roberts' decision on Obamacare. At least not yet. I think he made a huge, terrible mistake, but I don't see it as Roberts becoming the new Blackmun. If I'm wrong, we're in for real trouble down the road.

As for the FDNY decision, if it reaches the Supreme Court (which is quite likely), I think Roberts will stick with his original reasoning in Ricci, as will Sotomayor. The reversal in Ricci was 9-0, but the opinion was the usual 5-4 split on the issues.

LawHawkRFD said...

Kit: Yes, FDNY will appeal the decision.

LawHawkRFD said...

Bev: That makes sense. There are always advocates for people who didn't ask for advocates. It's the nature of do-gooders and leftists. This judge made a blanket ruling solely on minority disparate impact. What was interesting is that in Ricci, successful applicants of Hispanic background who were denied promotion in favor of less-qualified blacks were among the plaintiffs. In the current FDNY case, the judge seems to have added Hispanics to the quota list almost solely to keep them out of the future litigation.

LawHawkRFD said...

Shawn: LOL And well-said. People today tend to use the word "discrimination" as a substitute for "prejudice." It's a compliment to say that someone has a discriminating palate, but an insult to say that the same person discriminates.

LawHawkRFD said...

Anthony: This is an ongoing battle. The case you're referring to is one of the decisions this judge issued previously and on which he bootstrapped in the current decision. The cases will likely be consolidated, in which case the judge's prejudices will become even more apparent. It would have been great if he had simply proposed his own "non-discriminatory" written exam in the current opinion so the Supreme Court would have a clear issue to rule on. Instead, he just declares the exams "discriminatory" without specifying what is discriminatory about them other than the disparate impact.

tryanmax said...

LawHawk, as it was explained to me, the "Slippery Slope" can be a completely sound logical argument--not a fallacy at all, despite contrary claims--so long as the length of the slope is appropriate to the argument. The general rule is that the strength of the argument is inverse to the length of the slope. Of course, in NYC the slopes more closely resemble water park slides, so there's no telling how crazy things will get on the way down.

LawHawkRFD said...

tryanmax: I actually was attempting to be humorous. Slippery slope arguments have been misused frequently, but that doesn't mean the principle is wrong, as you pointed out.

T-Rav said...

LawHawk, I read the Roberts decision as him just being swayed by political considerations and talking himself into the "go along to get along" decision. That doesn't necessarily make him a liberal, but it does reveal him as a member of the Beltway crowd.

LawHawkRFD said...

T-Rav: That may very well be true, but I want to see a few more decisions before I make up my mind. There are some who think he did it solely to get Obamacare back into the political arena. But that would be a political decision in and of itself, and I don't want justices making decisions on political considerations even when I agree with the politics.

rlaWTX said...

can we have the "underqualified" firemen protect the judge's neighborhood?

tryanmax said...

Hawk, I spent my morning on the phone with various government agencies and bureaucrats. Nothing seems funny anymore.

LawHawkRFD said...

Anthony: I meant to vet one of the DOJ's arguments from the earlier cases which you mention in your post. ". . . unfairly biased in favor of white applicants who may have had a better education or been more accustomed to standardized testing than their minority counterparts." First of all, the test has been repeatedly revised to address those issues as DOJ requested and Garaufis has ordered. It made next to no difference. Second, whose fault is it that any of those allegations are true? The white and Hispanic applicants largely wanted to be fireman long before they applied and likely while they were still in school. The white and Hispanic applicants are not conveniently college-prep students preparing for the SATs while the blacks have been denied equal access. Most attended the same miserable public schools and followed the same curricula. It's a red herring. Third, the Hispanic applicants were far more successful than the black applicants, though many of them weren't native English speakers. These are all excuses for poor performance not explanations for the disparate impact. How far does the FDNY have to dumb its written test down before it becomes "See Dick run," a reductio ad absurdum? These are issues that the Ricci case specifically addressed and resolved.

Garaufis is simply ignoring that fact. He issued his current ruling on July 5, 2012, almost three years after Ricci. His ruling relies on his own past rulings with nearly zero respect for the Supreme Court decision which he has had three years to digest.

One exception to ruling solely on the briefs and arguments as presented at the hearing is an intervening Supreme Court decision. Ricci was a landmark intervening decision.

LawHawkRFD said...

rlaWTX: And while we're at it, they should be chosen from the current list of suspected arsonists.

LawHawkRFD said...

tryanmax: Don't I know it. Just try building a garden fence in California.

Some years back, I installed a gas barbecue in my back yard. It required me to run gas pipes from the side of my house to the barbecue, a distance of about fifty feet, around a corner and under a sidewalk. Three times the county inspector came out, and three times the pipes failed the required pressure test. I tore everything up and started over each time. A lot of work for self-performed home improvement. After the third time, I got both frustrated and angry, so I went out and rented a pressure gauge. I was well within safety guidelines. Turns out the inspector was using a defective pressure gauge. Thank God I did the work myself and didn't hire a contractor to re-do work that was just fine the first time.

LawHawkRFD said...

rlaWTX: I just realized something. There are no underqualified firemen, only qualified firemen who have been discriminated against. We gotta get with the program.

Individualist said...

Lawhawk

This is what really pisses me off about leftists.

Instead of asking the question why is it that the majority of minority applicants can only answer 26 out of 100 questions on a test and what can we do to help improve education and work related training ofr these people now and in the schools where they are obviously failing to be taught we do this nonsense.

We sit around playing games pretending people have the skills needed for the job. A job by the way where incompetence can end up being fatal to that individual. Why! Because we are self absorbed weak minded fools that worry about how we look to our friends in a cocktail party than doing what is right.

IF you are upset that 42% of minoritities are below the poverty line and are not being educated to a level ehre they have basic literacy handled then by God go into these schools are start teaching people to read. Something you can do for everyone there without having to inventory the amount of melanin in their dermis.

LawHawkRFD said...

Indi: You are absolutely right. And this self-deception includes crime rates. Unfortunately, for every Thomas Sowell there are a dozen Al Sharptons and a score of guilt-ridden white liberals. Any community which will not police itself is unlikely to benefit in any meaningful way from outside policing.

LawHawkRFD said...

Indi: I meant to add that this only leaves dumbed-down standards and employment by quota instead of by merit. Don't raise up minority knowledge and abilities to the level of true competition, bring down the overall standards, then skew them with artificial racial standards.

rlaWTX said...

"There are no underqualified firemen, only qualified firemen who have been discriminated against. "
Hawk, thank you for correcting my discriminatory POV that must be the result of white privilege. I will attempt to maintain the proper orientation toward this subject matter.

LawHawkRFD said...

rlaWTX: You racists are all alike. LOL

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