Thursday, July 26, 2012

My Objection Letter to the Dept of Justice Over Judge Garaufis' FDNY Decision

U.S. Department of Justice
FDNY Litigation Team
Civil Rights Division/ElS
P.O. Box 14400
Washington, DC 20044-4400
Friday, July 27th, 2012

Basis of my objection:

I am objecting to the recent Federal Court ruling and the subsequent awards based on the decision that FDNY Exams #7029 and #2043 “discriminated against black and Hispanic applicants.”

That ruling appears founded on the absurd premise that certain individuals are unable to compete on such standardized exams due to their ethnicity, or, more specifically, due to the color of their skin. The fact that over the years numerous black and Hispanic applicants for both entry and promotion have done very well on such exams clearly proves that premise to be in error.

Moreover, the fatally flawed construct of “disparate impact,” fails to pass scientific scrutiny, as there are simply too many variables left unmeasured, to make it possible to accept disparities in outcomes as evidence for either intentional or even unintentional discrimination.

Random groupings reliably deliver disparities in outcomes, so it’s far more likely than not that groups divided along ethnic, religious, economic or other lines would demonstrate even wider disparities – there’s absolutely no evidence that such disparities are linked, in any way, to discrimination of any kind.

If anything, the FDNY’s written and physical exams and standards have been too low for at least the past quarter century. One exam question from the 1982 Entrance Exam presented 4 views of a traditional gas gauge and asked, “Which one indicates half full?”

Contrary to some misinformed opinions, reading comprehension is absolutely vital to firefighting, as one CANNOT learn tactics, procedures, as well as such required specialties as Hazardous Materials abatement, First-Responder Medical and Defibrillation, except through the assigned classes and the copious reading materials accompanying them.

This current and ongoing FDNY case brings a direct challenge to the fatally flawed construct of “disparate impact” – the construct at the heart of our ongoing credit crisis. While “Traditional Lending Criteria” may well have a negative and “disparate impact” on lower income Americans, that “disparate impact” is CLEARLY and self-evidently NOT rooted in any form of discrimination, any more than exams with a disparity in outcomes between those who prepare and those who don’t can be said to “discriminate” in any negative way.

Simply because an employer chooses a group of very qualified or highly qualified workers at the expense of the minimally qualified DOES NOT rise to the level of (negative) discrimination. As a matter of FACT, anything less short-changes the customer (whether its consumers or taxpayers). A higher quality workforce is generally a safer workforce, improving public safety, as well as increasing the safety of the members themselves, as a higher quality, more disciplined and well-prepared workforce carries out operations more efficiently and effectively.

Given that the life-saving mission of the FDNY is rooted in personal and public safety, it is self-evident that low standards impede that mission just as surely as higher standards make that mission much easier and more likely to attain.

Moreover, while high standards CANNOT be shown to discriminate based on race/ethnicity (since many members of EVERY group have done well on such parameters), low standards are easily proven to both overtly and deliberately discriminate against high-quality applicants from ALL backgrounds by broad-banding them into large, amorphous groups/applicant pools, making it impossible for them to stand out and out-compete those who are less highly qualified.

Aside from the obviously erroneous claim that “reading comprehension is not vital to firefighting,” there are numerous other claims related to the city’s demographics and the demographics of its workforce that must also be addressed.

It’s been claimed that “black applicants don’t know about the FDNY, nor when the exams are given, nor even how to apply.”

The fact is that according to the federal governments own Census data, non-Latino blacks (23% of New York City’s population) are the ONLY ethnic group in the New York City (NYC) Municipal workforce to be OVER-represented by MORE than 10% their numbers in NYC’s population! Non-Latino blacks comprise 36% of NYC’s Municipal workforce – a nearly 60% over-representation and the primary reason that BOTH Asians and Hispanics are UNDER-represented in the City’s workforce.

Since non-Latino blacks are so OVER-represented within the NYC Municipal workforce, it’s absurd to assert that non-Latino black applicants somehow don’t know about the FDNY’s application process when they DO (so obviously) know about the application procedures for virtually every other NYC agency.

Demographically, there are at least 7 other NYC agencies that are MORE ethnically unbalanced than the FDNY, including the Dept. of Juvenile Justice (78% non-Latino black) and the Corrections Dept. (65% non-Latino black). SEE:

Some have further argued that, “The ethnic and gender makeup of the FDNY reduces the number of applicants from other groups because they may feel unwelcome.”

If that’s indeed the case, then that’s even more true for the other 7 NYC agencies that are even MORE ethnically unbalanced than the FDNY is. SEE: and for the Board of Education, as well, where teachers are 84% female.

Standardized exams discriminate only against those who are less prepared, less qualified to pass those exams at that time. Applicants are free, after failing such an exam, to rededicate themselves to preparation and training in order to take a subsequent exam better prepared to compete.

It would seem, given the demographics of NYC’s Municipal agencies that people tend to gravitate to the jobs they have an interest in and an aptitude for, otherwise the Board of Education’s teacher ranks wouldn’t be 84% female and the Corrections Department wouldn’t be 65% non-Latino black in a city in which they represent just 23% of the population.

High standards DON’T discriminate based on race/ethnicity or gender, but low standards indeed DO deliberately, overtly and very negatively discriminate against the most highly qualified applicants from ALL groups.

Worse still, supporting quotas and racial/ethnic preferences is tantamount to supporting segregation – a pernicious segregation of standards.

In our recent history we found the heart and the collective will to oppose the segregationists of the past. It’s now incumbent upon us to find the heart and the collective will to oppose the segregationists of the present, as well.


Joseph M Kearney

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