Wednesday, April 29, 2009

Disparate Impact, Double Effect, and Euthanasia

On FindLaw today, I have a column that considers Ricci v. DeStefano, a case argued before the U.S. Supreme Court last week, in which white firefighters challenge actions taken by the City of New Haven Fire Department as violations of the Fourteenth Amendment Equal Protection Clause. The Fire Department had given an examination to determine whom to promote in its ranks but, after a hearing, decided not to certify the results of that examination because they produced a disproportionately white set of promotion-eligible individuals (and an all-white group of individuals to be automatically promoted). The Fire Department argues that if it had certified the test results, it would have been guilty of "disparate impact" race discrimination under Title VII (in which a facially neutral act resulting in a racially disproportionate outcome must satisfy "business necessity" to avoid violating the statute). My column examines the "damned if you do/damned if you don't" quality of trying to avoid both disparate treatment and disparate impact race discrimination.

In this post, I want to offer a provocative analogy to consider in thinking about disparate impact (and more specifically, in considering the Fire Department's decision to throw out the results of a test with a racially disparate impact): the case of giving a terminal patient a lethal dose of morphine. Under the laws of 48 states, physician-assisted suicide is a criminal act (the two outlier states are Oregon and Washington). This means that if a doctor deliberately gives a patient a lethal drug with the objective of ending his life, the doctor violates the law of almost every state. The law (and, to my knowledge, Catholic doctrine as well) allows, however, for a patient's pain to be treated with opiates sufficient in quantity to make the pain stop, even if that dosage is lethal to the patient. The difference between the two scenarios is the intent of the doctor: if the goal is to kill the patient, the act is prohibited, but if the goal is to relieve the pain (and has the incidental effect of also killing the patient), then the act -- given the importance of pain relief -- is permissible. The difference between intent and effect in this context tracks the distinction between purpose and knowledge (or what is sometimes called the "intending/knowing distinction").

How is this like "disparate impact" discrimination? In the following sense. When an employer uses a measure to determine how to allocate job benefits, her goal is ordinarily to award promotions only to the best employees. Once having used the measure, however, the employer learns about some of its unintended effects, and this can include a racially disparate impact. Knowing of this impact, the employer's decision to continue to rely on the test amounts to "knowing" discrimination -- that is, the employer is knowingly (if not intentionally) using a tool for awarding promotions that will favor white candidates over black candidates. If the employer knows of another, equally good, test of employee quality that does not have a racially disparate impact, moreover, the decision to continue relying on the "discriminatory" test represents a decision knowingly to engage in unnecessary discrimination.

Because the decision is not intentional, however, one who subscribes to a strong version of "double effect" reasoning might argue that such an employer's actions are permissible, despite the unnecessary and harmful discriminatory effect, just as a lethal dose of morphine is permissible, despite the lethal effect.

One important distinction, however, is that a life-threatening quantity of medication appears to be necessary to relieving many dying patients' suffering (which often includes oxygen starvation -- the sensation of suffocating -- and the terrible panic that this sensation causes), while the test in our example is apparently not necessary to awarding promotions to the most qualified employees (given the existence of another test with less racial impact). If there were two equally effective pain medicines, only one of which would kill the terminal patient, then I suspect that the law as well as Catholic doctrine would frown upon the selection of the lethal medicine over the nonlethal one. Indeed, such selection would, on its face, strongly suggest that the doctor's (and patient's) goal was in fact to end the patient's life and not merely to relieve his or her pain.

An employer's initial decision to use a particular written examination to determine whom to promote is, in all likelihood, innocent. She is not trying to discriminate; she is simply using a measure that, more or less, predicts performance quality. Once one has learned the effects of that examination, however, one must take responsibility for those effects and continue to employ the test with impunity only if it is truly necessary to rewarding the best employees with promotions. In the case of morphine and other pain-killers, we do not appear to have an equally effective (but non-lethal) way to end a suffering patient's agony. Until the same can be said of the test that the New Haven Fire Department gave its employees, it is difficult not to find a stubborn commitment to this particular test's results (and a refusal to change course) an instance of intentional discrimination. That such discrimination might be mandatory as a matter of Fourteenth Amendment Equal Protection would accordingly be unfortunate indeed.

Posted by Sherry Colb

33 comments:

Paul Scott said...

Here's to hoping we get to read a broadly applicable majority opinion by Justice Thomas.

AF said...

I take issue with the hypothetical in your column, in which you suggest that a college would violate the Equal Protection Clause by abandoning a strict grades-and-SAT admissions policy after finding out that it would result in the overrepresentation of East Asians.

I suppose that may be correct if there were specific evidence to that the policy was motivated by a desire to harm East Asians, rather than a desire to help applicants of other races.

But without such evidence, abandoning an admissions policy that overrepresents some groups and underrepresents others is perfectly constitutional. There is no need to show that the abandoned policy would have been unconstitutional or otherwise illegal.

The same logic should apply to the Ricci case (though based on the oral argument transcript, it is doubtful that will be the result). If an employer abandons a hiring policy because it has a disparate impact, that is a constitutionally permissible motivation irrespective of whether the disparate impact would have violated Title VII. To win, the plaintiffs should have to show that avoiding the disparate impact was not the employer's true reason, but rather that there was specific desire to harm whites.

egarber said...
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egarber said...

I think maybe the comparison only goes so far.

In the morphine example, it's unequivocal that the dosage is the cause of death -- there's a linear truth. But can we say that the qualification test *causes* disadvantage for minorities in the same way?

I mean, suppose a politician wanted tax breaks only for those making a million dollars or more. Arguably -- given that the vast majority of those income earners are white -- that might result in a disparate racial impact. But it's not the same as a policy that for example, bans the hiring of minorities (where there is nothing a black person can do to improve his chances).

Sherry F. Colb said...

AF makes an interesting point. My assumption in the East Asian student example was that grades & S.A.T.'s are used every year, with an ebb and flow of representation by various groups and that only in the one year that East Asians are overrepresented does the school decide another measure must be used. That, to me, would represent discrimination against East Asians. In the example as AF understood it, the school would be equally concerned about any disproportion, and that would, I think, be defensible.

On egarber's comment, a few thoughts. First, the morphine dosage does physiologically cause death in the particular person (in a way that a test doesn't strictly "cause" disparate perforamance on it). Nonetheless, the dose-response relationship is actually more complicated that simple causation as well. If a person has a tolerance for opiates, for example, then the same amount that would kill another person would not kill him. Similarly, some studies in Canada many years ago suggested that if a morphine-user is given morphine under distinct environmental stimuli, the response could be far greater than in familiar environmental circumstances (e.g., an "overdose" would sometimes involve a person taking the same amount of drugs as he usually takes but doing it in a different bathroom or at a different time of day). Therefore, the fact that an individual bears some causal responsibility for how he responds to a particular treatment does not relieve the "treater" of an obligation to take foreseeable consequences into account.

egarber also distinguishes between trying to get tax breaks for millionaires (who happen mostly to be white) versus banning the hiring of minorities. I do think the two cases are different, but part of the difference is that if one wants to curry favor with the wealthiest people, there is really no "equally effective" way to do that which will not have a disparate impact. Similarly, if it were the case that other valid tests of fire-fighter competence and mastery also had a strong racially disparate impact, then the disparate impact would ultimately be defensible as "business necessity" and it would no longer be fair to accuse the employer of discrimination. In the case before the Court, however, the employer held a hearing at which a witness (who develops such tests) said he could provide a test that would be as predictive of quality performance but without the racially disparate impact. In the face of that option, it seems to me, the decision to stay with the old test could fairly be characterized as discriminatory.

Sobek said...

"...an instance of intentional discrimination."Your proposed alternative -- denying promotion to whites and hispanics based on nothing other than skin color -- is also intentional discrimination. So much for "content of his character rather than the color of his skin."

Any reading of the Constitution that requires a municipality to tell a man "you will not be promoted because your skin is the wrong color" is morally abhorrent.

Sobek said...

Re: disparate impact.

Abortion jurisprudence is facially race-neutral but disparately impacts black communities by resulting in more dead black babies than dead white babies. According to eugenicist/Planed Parenthood co-founder Margaret Sanger, a reduced black population is a feature, not a bug.

Equal protection violation?

Or is a reduced black population an acceptable side-effect/intentional consequence?

egarber said...

Sobek, good to hear from you...

Abortion jurisprudence is facially race-neutral but disparately impacts black communities by resulting in more dead black babies than dead white babies.I'm thinking this is different. Privacy, as a fundamental right, implies that the government is essentially getting out of the way. As such, if anything, we're talking about self-inflicted "disparate impact" (via the individual exercise of a core liberty). And that's goofy on its face.

Or in another context, I don't think there's a disparate impact simply because group X might predominately choose to not own a gun (even though the right is conferred by the second amendment).

So in these cases, the individual is exercising a core liberty, and making a choice.

However, the goal of disparate impact jurisprudence is to control those who are potentially violating an individual's rights. In other words, whereas individuals can't self-inflict disparate impact, those same individuals can certainly be victims of disrimination.

Hopefully, that makes sense on some level.

As a related question for anybody:

Does disparate treatment doctrine arise directly from the 14th Amendment? Or is it confined to interpretation of the Title VII statute?

egarber said...

In other words, whereas individuals can't self-inflict disparate impact, those same individuals can certainly be victims of disrimination.
or even disCrimination :)

Sobek said...

"...whereas individuals can't self-inflict disparate impact..."Unless they all decide that education is "acting white," and on that basis undermine their collective ability to score well on promotion exams.

If blacks as a group score poorly on exams, it's not because of their skin color, and it's not because of genetics. It's because of the individual choices that make up group culture. In other words, yes, they choose to be disparately impacted by promotion exams.

egarber said...
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egarber said...

In other words, yes, they choose to be disparately impacted by promotion exams.
Nonsense. Have you ever talked to a black man or woman, and had them tell you this? I haven't.
It's easy to simplify things, when one hasn't lived on the other side for generations, suffering through all the associated institutional disadvantages and impairments.
It is very possible for examinations, etc., to be culturally skewed, where a minority has to put in 150% of effort to produce a majority's mere 100% of output. In this vein, the challenge is to normalize the communication and eliminate bias.

Sobek said...

1. "Nonsense."Then where is the disparate impact coming from? The written exam does not know what race the test-taker is. Blacks are not genetically or physically different from white in any respect that could be reflected on a physical exam (i.e. blacks are not dumber than whites, or physically incapable of learning).

Nor do undefined "institutional disadvantages" provide an answer. An applicant does not score poorly because his grandfather had to use a different sink. Speaking of "easy to simplify things."

I'm not dismissing the humiliation that de jure segregation can produce. I'm not denying that such humiliation has caused negative consequences on subsequent generations. I'm saying that if you sit two people down in front of a scantron and a number 2 pencil, and one person can answer math or reading comprehension questions and the other can't, absent any relevant physical differences, it is perfectly logical to ask whether one studied and the other did not.

2. You suggest that some applicants might have to put in 150% effort compated to another's 100%. Let's play with the numbers a bit.

Suppose the population in a community is 70% white and 30% black. The woman in charge of hiring -- we'll call her Chief Ginsburg -- decides that she wants to promote ten people in the fire department. Seven of them will be white, three will be black, she decides, because that's fair.

On test day, she finds forty-four applicants: forty are white, and four are black. Seventy-five percent of the black applicants will get a promotion, and seventeen percent of the whites will get a promotion. Because of the pre-determined allocation, the white applicants have to work substantially harder to get a promotion, because there is substantially more competition. (Meanwhile, the black applicants have just been seriously disincentivized to study very hard. Why should they? They only have to do better than the least-qualified guy.)

In the pending SCOTUS case, there is no predetermined outcome. Instead, Chief Ginsburg tells everyone who passed, "thanks for studying hard, I appreciate the effort. But I'm going to deny you something you worked hard for and earned, because of the color of your skin. Oh, and I'm going to pretend that's equality."

3. "Have you ever talked to a black man or woman, and had them tell you this?"No, I have never spoken with a black person who told me "my culture encourages me to be dumb."

You don't have to be white to argue that elements of black culture are highly self-destructive.

http://www.americanthinker.com/2004/06/cosby_a_credit_to_his_race.html

Sherry F. Colb said...

If African-American fire-fighters are just as good at fighting fires as white fire-fighters but not as good at taking the promotion exam offered by the City of New Haven, it is odd that anyone would suggest that the white people who performed better on the exam are entitled to benefit from the results of that exam. The job, after all, is not exam taking; it is fire-fighting. The idea of business necessity is not that unqualified people should receive promotions because of their race (though some opponents enjoy mis-characterizing the idea in this way because that makes it easier to criticize). The point is that tests that appear to be neutral are in fact selecting white people over equally qualified African American people. No one is entitled to reap the rewards of that selection bias. Consider a law school exam that asked questions that required familiarity with a television series that only one race or one sex watches. Is it really an equality violation to notice the bias and substitute a criterion that more fairly distinguishes those who know the law from those who do not?

egarber said...

Sobek,

The outright quota at the foundation of your example would be illegal under current precedent, so the exercise isn't really applicable. But your general implication -- that it's actually easier for black people to get ahead than members of the white majority -- simply doesn't hold up. In my view, a black person overall (even today) has to perform at 150%
to attain as much as a white person pacing at 100%. Eradicating racial bias in testing, etc. is a response to that disparity.

In the case at hand, the pass rate for black test takers was half that of whites. Your contention seems to be that the black candidates simply weren't trying or didn't study, which is tough for me to believe -- given that these promotions mean family security and pride. And further, if you're right, black folks should perform this poorly in ALL testing. They don't -- that's why this one stands out.


I'm not necessarily saying the test was biased (we'd have to examine it and the statistical analysis to know), but I'm very comfortable in concluding it's much more likely to be a skewed exam / setting than an example of "cultural self destruction." The latter conclusion is simply not convincing, especially when combined with the opinion that it's not necessary to engage minorities on their attitudes, experiences, and motivation.

Sobek said...

Prof. Colb said: "If African-American fire-fighters are just as good at fighting fires as white fire-fighters but not as good at taking the promotion exam..."I haven't seen the exam, so I'm making a few assumptions about it. It is a promotion exam. Promotion means managerial responsibilities, which means something more than just fighting fires. It means organization, filing reports, basic math. It's not about how t fight fires, because all of the applicants are already doing that. So no, the job is not exam-taking, but neither is it fire-fighting.

If my assumption is wrong -- if the exam asks the applicants to deconstruct feminist themes in The Comedy of Errors -- then the whole test is nonsense, and I withdraw my argument.

"The point is that tests that appear to be neutral are in fact selecting white people over equally qualified African American people."You give the whole game away by assuming the African Americans are equally qualified. What constitutes "qualified" depends on the nature of the test and the nature of the job, right? If the nature of the job meas reading comprehension, mathematics and management, and if the test covers those subjects, then anyone who fails it is not qualified.

"Consider a law school exam that asked questions that required familiarity with a television series that only one race or one sex watches."Okay, I will consider such an exam. I thought this example might be silly, but it fits in with your hypo. There was an episode of Different Strokes in which the two black boys applied for some snobby prep school. The stodgy old white guys (who almost certainly smoke Cuban cigars and vote Republican) assume the kids are white, because Mr. Drummond is white. When they meet the kids, one of them says to another, "there's no way these kids will pass the entrance exam." Not because the white guys are racist (although in fact they probably are), but because of what Eric described as a "culturally skewed" exam.

We get a glimpse of the exam: Who is the blind lady with the scales? Mr. stodgy white guy knows it is Justice. The black kids think it's someone who works at the grocery store.

But the kids manage to turn the tables on the stodgy white guys. They ask questions like "what are the three blues?" White guy names three shades of blue. But no, the kids smugly name three kinds of music, before giving each other a triumphant high five. See? Our culture is different. We're not dumb, we just know different kinds of things than you. And (if memory serves), we don't want to go to your snobby school anyway.

When you are considering applicants to a liberal arts school, questions of culture can produce bad results. I would badly fail a test on the intricate subtleties of Tupac vs. Biggie Smalls. In the liberal arts context, entrance questions about those two performers would certainly skew towards one race. Unless I'm applying to the Tupac Shakur School for Bustin Dope Rhymes, the test would be inappropriate.

For the same reason, a law school exam that assumed familiarity with any facts not necessarily known to the students is flawed. The test is designed to assess understanding and application of legal principles, not pop culture trivia. A friend of mine took an IP exam that discussed Beatles music, and most of the class missed the fact that Michael Jackson owns the rights to the music. I certainly would have missed that point. It's a bad test.

Back to the firefighter exam. If we're really talking about a test of culture, then I'll agree it's a bad test. But if we're talking about a test of math, organization, management, reading comprehension, writing ability -- all the things one needs to be an effective leader (and hence deserving of a promotion) -- then the lack of innate, physical differences between the races indicates that any skewed results were produced by individual choices not to study hard enough. And if one race or another, for cultural and/or historical reasons, chooses not to study hard enough, then punishing every other applicant is simply abhorrent to the notion of equality.

So I've stated my assumptions about this specific case. Generalizing a bit more, I note that those who rely on disparate impact analysis usually do so without regard to whether the test accurately reflects the nature of the employment. In my 14th Amend. class, we discussed a Baltimore (I think) police force test that blacks failed in greater percentages than whites. I apologize that I'm fuzzy on the details, here. The conservatives in class (both of us) and in the opinion noted that reading comprehension and writing are important skills for a police officer. The liberals said, so what? Not enough blacks on the force, therefore the test is bad. They did not care about the substance of the test or the nature of the job duties, only the end result. Even if the only way to achieve that end result was to intentionally discriminate against people based on skin color.

Sobek said...

Eric said: "...that it's actually easier for black people to get ahead than members of the white majority..."That mischaracterizes my point. I'm giving one hypothetical under which reduced competition among minority applicants would have an easier time. Change the numbers in my hypo (for example, reverse them) and it is far easier for the minority whites to get the job. Reduce competition for the slot, and standards drop. My point is not that things are easier across the board for blacks -- it is that "benign" racism is not justified by sweeping quota programs.

"In my view, a black person overall (even today) has to perform at 150%
to attain as much as a white person pacing at 100%."
I know that I'm reading you wrong here, so I'll ask for clarification rather than counter your argument. 150% of what? Of intellectual capacity? Because the way that looks to me is that a black man performing at 150% of his ability is as good as a white man performing at 100% of his ability. As I said, I know that's not what you mean.

"And further, if you're right, black folks should perform this poorly in ALL testing."That seems to be precisely the case:

http://archives.cnn.com/2000/US/10/26/test.score.gap/

"Your contention seems to be that the black candidates simply weren't trying or didn't study, which is tough for me to believe -- given that these promotions mean family security and pride."If the tests were taken in a vacuum, then sure. But it is a lifetime of study -- and more importantly, attitudes about study -- that provides a foundation for when a firefighter wants to study for this particular test.

At that point, maybe your 150%-100% assertion starts to make sense. I generally do well on tests. Maybe I didn't have to put in even 100% effort to pass the bar, while others put in 150% and failed anyway. The difference in that case would not be race-based, it would be based on cultural attitudes toward education and study.

Put another way, if my starting foundation is 90, then to reach 100 I only need to put in the effort to improve by 10. If the student next to me has a foundation of 60, he needs to put in the effort to improve by 40. He needs to work four times harder than me to achieve the same result. But the foundational difference is not genetic -- it is a function of what I was doing the 25 years or so before the test.

Kids who grow up in broken homes, with no father, with terrible schools, with no work ethic, with no hope and no incentive to try hard, will not do as well. If the black community fosters values that leads to broken homes, etc., it will produce black children who will not do as well. The same is true of whites, or any other race.

egarber said...

"In my view, a black person overall (even today) has to perform at 150%
to attain as much as a white person pacing at 100%."I know that I'm reading you wrong here, so I'll ask for clarification rather than counter your argument. 150% of what?
What I meant is that given the racism that still exists – which results in real barriers – a black candidate for something has to be cleaner than a white person in a similar situation. As a random example, if a black mother has a child out of wedlock, it plays into a stereotype, making it harder for that woman to find a job. A white single mom in similar circumstances doesn’t face that burden. Even people who don’t consider themselves racists fall into the trap, because it’s engrained to a degree.

And therefore, it’s possible for that same uphill battle to find its way into exams or other vetting tools, although here it’s in the form of unequal cultural treatment / impact.


"And further, if you're right, black folks should perform this poorly in ALL testing."That seems to be precisely the case:

http://archives.cnn.com/2000/US/10/26/test.score.gap/
There’s a distinction here. I said “perform this poorly” – I never said that scores were equal between the races everywhere else. The question is whether the firefighter exam represents something outside of norms sans bias in testing. We all know that African Americans often score lower in testing, but I haven’t seen a consensus around the idea that they’re only doing *half as well* as whites (what happened in this case) in identical situations.

Of course, some of the disparity at large is likely the result of racial bias in testing, but I’ll also acknowledge that a good bit isn’t.


Kids who grow up in broken homes, with no father, with terrible schools, with no work ethic, with no hope and no incentive to try hard, will not do as well. If the black community fosters values that leads to broken homes, etc., it will produce black children who will not do as well. The same is true of whites, or any other race.I basically agree with your socioeconomic observations. And I also agree that fatherless families among the poor struggle much more (Barack has singled this out as a challenge). But I don’t think it’s part of a value system or inherent cultural deficiency –instead, that type of breakdown is the *effect* of socioeconomics and racial oppression / discrimination. I'm fully convinced we'd see the same among white people, had the racial equation been reversed in our history.

Don’t get me wrong, I’m not taking individuals off the hook; I’m merely saying that we all have an obligation to understand and address the complexity of the issues. In other words, the white majority still bears part of the burden.

egarber said...

As a random example, if a black mother has a child out of wedlock, it plays into a stereotype, making it harder for that woman to find a job.I should say this more broadly:

As a random example, if a black mother has a child out of wedlock, it plays into a stereotype, making it harder for that woman to achieve respectable societal status. A white single mom in similar circumstances doesn’t face that burden.

egarber said...

One other quick point:

I'm almost positive that I've seen reports of studies concluding that black students score much better when they attend relatively affluent schools with a majority white enrollment or a good racial mix -- indicating a strong socioeconomic reason behind the gaps.

In fact, wasn't that one of the arguments in front of the court during the Brown v Board saga?

Sobek said...

"...given the racism that still exists – which results in real barriers – a black candidate for something has to be cleaner than a white person in a similar situation."That, and your example about the unwed black mother, may be true in a job interview context, but not in the context of a written exam. I'm assuming the test did not involve questions like "are you a black, single mother?" I'm also assuming it does not ask questions that only a black, single mother would be likely to know (or more likely than, say, a black woman with no children, or a married black woman). The cultural bias you (and Prof. Colb) reference applies where a test-taker needs some informational background in order to succeed on a test; it has nothing to do with reproduction and family statistics.

"But I don’t think it’s part of a value system or inherent cultural deficiency..."I don't know much rap, but the lyrics I have read and heard do not exactly glorify education, monogamy, or parental responsibility. But those are the lyrics that sell albums, T-shirts and concert tickets.

Notwithstanding any of my previous arguments, I remain open to changing my mind about the test if it is demonstrated that there really is a cultural bias. I am deeply skeptical that the test was biased, but I can't say for certain.

What I reject is a categorical assertion that if members of one race perform better on a test than others, it must be or is presumably due to cultural bias. I do not imagine, for example, that whoever writes the SAT exams is culturally biased toward Asian-Americans, and any disparate scores are indicative of a culture that promotes education and hard work. More of that, please.

egarber said...

..."I don't know much rap, but the lyrics I have read and heard do not exactly glorify education, monogamy, or parental responsibility. But those are the lyrics that sell albums, T-shirts and concert tickets.Well, I'm a big Iron Maiden and Avenged Sevenfold fan -- but I can tell you that necrophilia and mass slaughter aren't my moral barometers in life. In a way, I think you're sort of making my point about the (maybe unconscious) double standard against minorities. Do you question the value system of all the white people who worship say, the murder in the Sopranos series? If not, why the benefit of the doubt on that side? In any case, rap lyrics are often merely descriptive, not a forum for professed values.


What I reject is a categorical assertion that if members of one race perform better on a test than others, it must be or is presumably due to cultural bias.I never said anything categorically. I even specifically said I didn't know if this test was biased (we have to examine it). What I did dispute is the notion that it was a cultural failure -- people not studying because they're black, etc.

Sobek said...

Well this thread has moved far afield.

"...but I can tell you that necrophilia and mass slaughter aren't my moral barometers in life."Glad to hear it. But neither Iron Maiden nor A7F write their music in the context of a culture where either thing is a genuine social problem -- it's pure fantasy (other than the occasional outlier).

Gangsta rappers really do murder each other. 50 Cent really does have bullet holes in him. They really do treat women like crap, they really do have out-of-wedlock children.

Better examples than Iron Maiden would be Alice in Chains or Nirvana. They both reflected and influenced the culture around them. Nothing fantasy about it, so it's a different kind of cultural barometer. (Even Iron Maiden has cultural significance, just not the kind you suggest. Back in the day, they represented rebellion and transgression against social norms, through sound and lyrics rather than through social commentary)

But I don't want this discussion to turn into the merits or demerits of rap music. My point is that music is an important marker of culture, and in this case, it marks a culture that produces disdain for education, which in turn can produce a non-racist explanation for disparate test scores.

I should add, although it is obvious, rap is not a uniquely black art form, either for performers or audiences. How that music is used by the listener will affect the observable outcomes. If a wealthy white kid in suburbia listens to Tupac as a form of rebellion, we can expect a different result than when a poor black kid in the ghetto listens to the same Tupac as a form of aspiration.

"In a way, I think you're sort of making my point about the double standard against minorities."In the context of an interview, perhaps. If I ask an applicant what kind of music he likes, and he says Tupac, then that might subconsciously influence my conclusions about whether he will be a good employee (just as, for example, a white applicant who tells me he likes Slayer or Iron Maiden might influence my conclusions). But in the context of a written test, one that I can only assume does not touch on cultural issues like music or literature (because why would such things be on a firefighter's promotion exam anyway?), there is no subconscious bias. Just math, business organization, problem solving -- the things you need for a managerial position at a fire station.

"I never said anything categorically."And I never said you did. That's the view I ascribed to anonymous students in my 14th Amendment class. If you don't want to defend that view, then (a) you don't have to, and (b) good for you. If you reject a categorical approach to disparate impact, then we aren't all that far apart. Except perhaps taste in music.

egarber said...

A few points:

1. Though I understand the fantasy / reality distinction, I think it's beside the point I was making: singing about something doesn't necessarily make one an advocate of described behaviors. Music is cathartic, or it represents a commentary. Many times, it lashes out in frustration *against* the status quo.

Assuming that a typical black man is violent, favors broken families and looks down on education, simply because of musical choice, is tantamount to thinking all white fans of Pink Floyd's the Wall must be on their way to self destruction and insanity. If one of my favorite songs is 22 Acacia Avenue, which is about violent rape (hardly fantasy content in my environment) -- does that mean degradation of women is a personal value to me? Of course not.

My black friends who listen to rap (and jazz, pop, hip hop, etc.) don't show disdain for education -- many went to college -- and they certainly don't abuse their wives (in fact, black women are typically the stronger player in relationships). They say I wouldn't conclude anything innate about Italian culture, merely because organized crime and mob killings play a role in Italian artforms. And I wouldn't say the Hispanic culture is inherently prone to violent killing, simply because drug gangs permeate literature, etc.

2. Further, it's mighty stereotypical to assume that all black people listen to harsh rap, as if "black culture" is simply a monolithic extreme, with no other art / musical influences. Almost all mainstream music on some level is derived from the blues and gospel -- and soul music has generated some of the best love songs of all time. Yet, to some people, gangsta rap deserves a monopoly in defining the "culture" (and even that is misunderstood). No other minority receives that kind of disparate / lop-sided treatment, imo.

Based on your conclusions about the case at hand, you seem to think all the black fireman must be avid rappers -- taking the harshest songs *literally* to heart and acting it out. How can you possibly know that about these folks? That stereotype is not only potentially racist in itself -- it also modernizes Ellison's invisible man construct.

I'm not saying that there aren't some people who form the wrong values in this context. But it's an unfounded reach (a logical fallacy) to draw aggregate conclusions about an entire culture based on such a narrow assessment.


3. As African Americans move up the income and education scale, families and communities become more stable. This is an indication that socioeconomics, not cultural values, lie at the heart of the struggle. The poor mother of a little girl struggling in school, because she can't get accommodation for a learning disability easily obtainable in an affluent white community, isn't instilling "disdain" for education as a value -- she's in a state of quiet desperation. And too often, her struggle is drowned out by talk radio rants about rap music.

egarber said...

Based on your conclusions about the case at hand, you seem to think all the black fireman must be avid rappers -- taking the harshest songs *literally* to heart and acting it out.I should say (damn it, I need an editor :) ),

Based on your conclusions about the case at hand, you seem to think all the black firemen must be avid rappers -- taking the harshest songs *literally* to heart and acting them out.

Sobek said...

Okay, my last comment on this thread.

"...singing about something doesn't necessarily make one an advocate of described behaviors."Not necessarily, no, but it can, and the videos for the songs I'm talking about are celebratory. Alice in Chains wrote an entire album about heroin addiction (one of my favorite albums of all time, BTW), and it sounds like a miserable cry for help. But if I watch a video where the rappers are dancing on top of an Escalade in front of a mansion, surrounded by partiers and skanky women, I don't see any hint of condemnation in it.

"Many times, it lashes out in frustration *against* the status quo."That's what old school rap videos looked like. Downcast men walkthough through the hood, images of violence, loss, waste and degredation.

"Assuming that a typical black man is violent, favors broken families and looks down on education, simply because of musical choice..."I'm not assuming anything about a typical black man. I'm talking about a much more limited demographic: young, minority race, below poverty level, on government assistance, no family tradition of higher education, no father in the home.

And I realize I'm making some sweeping statements here, but the more of the foregoing you strike off that list, (a) the less likely you are to see "black" culture as stereotypically portrayed, and (b) the less likely you are to need government assistance with a standardized test. Hence,

"My black friends who listen to rap (and jazz, pop, hip hop, etc.) don't show disdain for education -- many went to college..."Good for them, and if they got into college they probably know how to take a test. Right? There's nothing wrong with their brains, or their reasoning power, or their reading comprehension. That's a fair description of most of the young, black men I've known -- they aren't dumber or less capable than the average white guys I know.

"...it's mighty stereotypical to assume that all black people listen to harsh rap, as if "black culture" is simply a monolithic extreme..."I hope I've sufficiently clarified myself on this point.

The Janitor said...

Sobek said: "don't know much rap, but the lyrics I have read and heard do not exactly glorify education, monogamy, or parental responsibility."You guys are listening to the wrong stuff. Check out Common, Mos Def, Q-Tip, Will.I.Am, Talib, Outkast, Lupe Fiasco, Dead Prez, Nas, et al.

Prof. Colb's (hi Professor Colb) point "that tests that appear to be neutral are in fact selecting white people over equally qualified African American people" reveals the glaring inconsistency contained within the notion that a test on "math, business organization, problem solving -- the things you need for a managerial position at a fire station" can not be administered in a culturally biased manner. Although these subjects are culturally neutral in the abstract, that fails to speak to how exactly these concepts were tested.

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