When the Liberal Arts and Sciences Test, which was required to teach in New York City, disproportionately weeded out black and Hispanic teachers, a federal judge ruled it was discriminatory (“Judgements over discriminatory NYC teachers exam raise possibility of $3 billion case,” New York Daily News, Mar. 28). The decision meant that up to $3 billion could be awarded to those teachers.
If the exam could be shown to have little relevance to the ability of teachers to be effective in the classroom, that would be one thing. (That was the basis for the U.S. Supreme Court’s ruling in Griggs v. Duke Power Co. in 1971 when it held that test results must be reasonably related to the job.)
But to label the exam discriminatory solely because fewer black and Hispanic teachers passed than whites and Asians is contrary to what the U.S. Supreme Court ruled in Ricci v. DeStefano in 2009. In that landmark case, the high court decided that although white firefighters scored higher than minority firefighters, the City of Grand Haven, Conn. had no right to decertify the exam results. If it were allowed to do so, the white firefighters would be the victims of reverse discrimination.
There will always be differences in outcomes on all exams that have nothing to do with discrimination. They may be due to the fact that some test takers study harder or are smarter than others. The same thing holds true for the teachers’ exam in New York City. Just because black and Hispanic test takers did not score as high as white and Asian test takers is no reason to throw out the results.
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theedhed.com 
Totally nuts. The 2012 underlying court decision is almost certainly wrong — or at least an extreme application of the often-misunderstood disparate-impact analysis.
Disparate-impact is a valid analysis, but only if restricted to its original conceptual basis.
If an employer uses a test that disparately impacts a protected group (i.e., blacks), that fact is evidence that the employer’s motive in using the test was unlawful discrimination.
However, it is only a piece of evidence. By itself, it does not prove unlawful motive — the ultimate issue before the court.
The classic disparate-impact example would be the tests that southern states used to block blacks from registering to vote back in the 1950s. Not only were the tests largely unrelated to the ability to vote intelligently, but the govt required only blacks to take the tests. And, the southern state govts had long histories of discriminating against blacks. Overwhelming evidence of unlawful motive.
But, the disparate impact of the NYC test here is probably the only evidence suggesting unlawful motive. There is some rational relationship between the test and the job. The city officials were elected by a majority-minority electorate. Many of the city officials were themselves minority. It was just nutty/wrong for the judge back in 2012 to conclude that the disparate impact of the test proved by a preponderance of the evidence that the govt’s motive in using the test was unlawful.
Probably, the court back in 2012 jumped from the fact of disparate impact directly to the conclusion of unlawful motive w/o giving any weight to other evidentiary factors. Don’t know if the govt appealed the court’s decision to the Second Circuit or, if it did, how the Second Circuit analyzed the case. Seems like the govt should have won before the district court and certainly should have won before the Second Circuit. Perhaps the govt attorneys did a bad job trying and/or appealing the case. It’s possible the city govt leaders decided for political reasons not to appeal the district court decision.
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Labor Lawyer: The test in question was a reasonable measurement of basic verbal skills. The mere fact that blacks and Hispanics did not score as high as whites and Asians on the test is by itself not evidence of bias. But the high court automatically ruled that it was. I guess no test will be able to pass muster unless it results in equal outcomes among all racial groups.
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I spent some more time today tracking down the litigation history. Looks like the Bd of Ed did appeal to the Second Circuit (federal appellate court) several times + that the Second Circuit took what I view as too pro-plaintiff an approach — basically saying that a general-ability test (as opposed to a specific-job-skills test) could not be sufficiently job-related to meet the employer’s burden of showing that the employer’s use of the test was lawful. It also seemed to me that the Second Circuit was precluding any inquiry into the employer’s actual motive — think that goes too far under the relevant SCt decisions, but I did not go back to read those SCt decisions. In other words, if the NAACP, for example, had used a general-knowledge test in hiring secretaries + if that general-knowledge test had a disparate impact on black applicants (that is, whites passed the test at a significantly higher rate than blacks), then the NAACP would be shown to have unlawfully discriminated against black applicants, notwithstanding that everyone in the NAACP management hierarchy was black and the purpose of the organization was to advance black persons’ interests.
Bizarre.
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Labor Lawyer: Many thanks for your comments about this highly controversial issue. Strictly from the point of view as a classroom teacher, I can understand that no test has perfect predictive value about an applicant’s future effectiveness in front of a roomful of students. An applicant can ace a test and yet be a total flop and vice versa. But I think that testing is necessary to weed out applicants who lack even basic skills. If that means a disparate impact, so be it.
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