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: http://www.citylimits.org/multimedia/257/new-york-city-s-agencies-by-race-ethnic-breakdown
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: http://jmk444.wordpress.com/2012/03/24/if-you-think-the-fdny-is-ethnically-imbalanced-take-a-look-at-these-new-york-city-agencies/
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.
Sincerely,
Joseph
M Kearney
