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Despite Ruling, Testing Debate Far From Settled

The U.S. Supreme Court renewed debate Monday over the fairness of high-stakes testing with its ruling that White firefighters in New Haven, Conn., who scored high enough to win promotion on an exam Black firefighters didn’t, were unfairly denied promotions as a result of their race.

“The Supreme Court sides with the White (firefighters) without really exploring the test itself for possible biases or deciding whether or not the test was the only test that could determine who is fit to be [promoted],” said Dr. Darnel Hunt, director of the Ralph J. Bunche Center for African American Studies at the University of California, Los Angeles.

“I would imagine, that the [opposition] will find solace in this decision and use it to try to argue that the test is the right measure of merit, and if minorities don’t do well then that is their fault. This decision opens the door for that,” said Hunt, who is concerned that this type of thinking could harm the college admissions bid of minorities who don’t score well on admissions exams. The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

In a 5-4 ruling, the justices, who split down ideological lines, determined that the city of New Haven’s decision to discard a promotions exam after none of the Black firefighters passed was unconstitutional, violating Title VII of the Civil Rights Act of 1964.

Associate Justice Anthony Kennedy delivered the opinion of the court in which Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito joined in. According to transcripts provided by The New York Times, Kennedy wrote, “Whatever the city’s ultimate aim — however well intentioned or benevolent it might have seemed — the city made its employment decision because of race. The city rejected the test results solely because the higher scoring candidates were White.”

In dissent, Associate Justice Ruth Bader Ginsburg said the White firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.” Associate Justices David Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg’s dissent.

Media reports indicate that city officials in New Haven were perplexed as to how to handle the exam’s results. On the one hand, test scores promoting only White firefights would induce a lawsuit by the Black firefights. By throwing the test scores out, the city found itself in a lawsuit with the White firefighters.

Members of the higher education community watched the series of events closely, monitoring how a decision involving firefighters and a promotion test could affect prospective college students mandated by most selective universities to take standardized test as requirement of admissions.

“The Supreme Court majority acts as if test scores are a fair and accurate measure of merit. They are not,” said Robert Schaeffer, public education director of the National Center for Fair & Open Testing. “The test did not measure who was best qualified for promotion. All it measured was how well people can answer questions about firefighting theory.”

Schaeffer, like some of his peers, was not surprised by the decision. Given the ideological nature of the Supreme Court, he said, it was the result that FairTest expected.

“The decision is relatively narrow in that it deals only with employment testing under Title VII under the Civil Rights Act. It should not have any impact on higher education or K-12 testing. FairTest will continue to lead the national movement for test optional admission,” Schaeffer said.

The case, Ricci v. DeStefano, came on the last day of the court’s term and was one of the most closely watched discrimination cases in years, experts say. In fact, Supreme Court justice nominee, Sonia Sotomayor, sat on the panel that dismissed the White firefighters’ initial claims.

In New Haven, Nancy Ricci, whose son, Frank, was the lead plaintiff on the lawsuit, carried a large cake decorated with red, white and blue frosting into the law office where the firefighters were celebrating their victory.

The ruling is “a sign that individual achievement should not take a back seat to race or ethnicity,” said Karen Torre, the firefighters’ attorney. “I think the import of the decision is that cities cannot bow to politics and pressure and lobbying by special interest groups or act to achieve racial quotas.”

Said Dr. Mary Frances Berry, the R. Segal Professor of American Social Thought at the University of Pennsylvania: “The most that I can say about this decision is that it is disappointing but not unexpected. It is text without context. It does not take into account the context for the discrimination that has taken place in fire departments and police departments and the fact that discrimination still exists.”

But Juan Gilbert, professor and chair of Human-Centered Computing at Clemson University, said the case was not about race. “The basis of the decision had less to do with actual affirmative action. The base of the decision was that you could withhold or deny a [cohort] of people a promotion for fear of a lawsuit. To me, the fundamental point is that we have not solved this problem of diversity.”

“My observation is that they are addressing the wrong issue. They are making this about race, gender and national origin when the truth of the matter is this is a resource and capacity issue. The nation has grown to a point where we have more qualified people for each position than ever before,” said Gilbert, noting tests are used to narrow the field. “As such, what we are seeing is this unforeseen level of competition for a scholarship or an admission slot. When you have a group of people who don’t get in, they look for explanations.”

This report contains information from The Associated Press.

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