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Yesterday the United States Supreme Court handed down its decision in Ricci v. DeStefano which overruled President Obama's recent Supreme Court nominee, Sonia Sotomayor. Not since Kelo v. City of New London has the outcome of a case been so obvious. However, this time the Supreme Court got it right. Activist Judge Sotomayer, however, relying on her status as a "wise Latina woman with the richness of her experiences," got it wrong.
Disparate Treatment and Disparate Impact
Everyone knows employers cannot discriminate on the basis of race, color, religion, sex or national origin. This is called "disparate treatment" and is a violation of the law, specifically Title VII of the Civil Rights Act of 1964. There is another, less understood, form of discrimination that is potentially just as illegal, "disparate impact." An employment practice, neutral on its face, has a disparate impact when it adversely affects one protected group more than another. A classic example is the requirement of a high school diploma for a manual labor position in which a diploma isn't really necessary. Statistically, fewer minorities have high school diplomas and will, therefore, be excluded at a greater rate by the unnecessary requirement of a diploma. This results in a "disparate impact" on minorities which, combined with the unnecessary nature of the requirement of having a high school diploma, is illegal. However, note that if the position was for an entry level clerk which utilized skills one ordinarily learns in high school, the requirement of a high school diploma would be lawful despite the disparate impact it might have on minorities.
More specifically, the legal analysis of disparate impact is as follows:
"Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin. An employer may defend against liability by demonstrating that the practice is job related for the position in question and consistent with business necessity. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs."
Ricci v. DeStefano, 129 S.Ct. 2658, 2673 (U.S. 2009).
New Haven Fire Department
In 2003, the City of New Haven, Connecticut, needed to fill vacant lieutenant and captain positions in its fire department. In the olden days, a racially discriminatory city might test applicants for the firefighter position on yachting, ice hockey and fondue etiquette in the hopes that only whites would score well and, thus, "earn" a promotion. Now days, painstaking care is taken by specialized outside contractors experienced in creating test which relate solely to job requirements and which do not favor one race or group over another.
The Test Construction
The Charter for the City of New Haven requires the hiring and promotion process to be based on merit. This is a logical requirement if one wants, by definition, the best people to fill a position. To fulfill this requirement, the City hired Industrial/Organizational Solutions, Inc. ("IOS"), to develop and administer the firefighter examinations. Pursuant to the City's contract with the firefighter's union, the promotional tests were to be based 60% on a written exam and 40% on an oral exam.
"IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results-which IOS would use to develop the examinations-would not unintentionally favor white candidates."
Id., at 2665.
The oral examination portion was likewise constructed by IOS based on job skills and abilities:
"IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors."
Id., at 2666.
There were nine three-member assessment panels each having one white, one black and one Hispanic member. Accordingly, the oral examinations were judged by one white and two minority panelists consisting of "battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes to New Haven's throughout the country."
118 New Haven firefighters took the exams to qualify for promotion to the rank of lieutenant or captain.
Because there were 8 lieutenant positions open, the top 10 candidates were eligible for promotion. All 10 eligible candidates were white. Subsequently, 3 more lieutenant vacancies opened up making the next 3 highest scorers eligible, all of whom were black. There were 7 captain positions open for which the 9 highest scoring eligible candidates consisted of 7 whites and 2 Hispanics.
Not surprisingly, people who only focus on equality of outcomes and not equality of opportunity had a problem with the test results and a controversy arose over whether to certify the test results. Without knowing whether they had passed or failed some firefighter candidates spoke up in favor of certifying the exam results. One candidate proclaimed:
"every one of the questions on the written examination came from the study material. If you read the materials and you studied the material, you would have done well on the test."
Id., at 2667.
Another candidate, Frank Ricci, who would become the lead plaintiff in the fight to certify the test results stated:
"he had several learning disabilities, including dyslexia; that he had spent more than $1,000 to purchase the materials and pay his neighbor to read them on tape so he could give it his best shot; and that he had studied 8 to 13 hours a day to prepare for the test. 'I don't even know if I made it," Ricci [testified], 'but the people who passed should be promoted. When your life's on the line, second best may not be good enough.'"
A lesson for everyone who is "disadvantaged" can be found in the wisdom of Frank Ricci. If you have a hurdle or obstacle to overcome, the answer is not to seek special dispensation but, rather, to simply work harder than everyone else. Is it fair, probably not, but it's the American way. Bust your ass and you'll be rewarded. I've seen so many people in my life come to this country unable to speak the language and with no appreciable skill other than the willingness to do long hard work. They open up a small shop, work 16 hour days, sleep on a cot in the back and their children become doctors and engineers--one generation and they are at the top to the social-economic ladder. Is it fair that they had to work so hard? I don't know. But, the results are undeniable.
The criticisms of firefighters who spoke out against the exams is incredibly telling:
"And they criticized the test materials, a full set of which cost about $500, for being too expensive and too long."
For this to have been noted by the court, somebody had to decide it wasn't worth it to purchase the study materials. It was a cultural--not a racial--bias which caused someone to weigh the $500 versus potential career advancement and decided the materials were too costly. There's no question this represented a lot of money to many but compare that to the tens and hundreds of thousands of dollars people routinely spend on their educations. Call me insensitive, but $500 seems like a bargain. The most amazing criticism, though, is that the materials were too long. Now there's an individual who simply wants everything in life to be handed to him or her.
One witness for the City in favor of throwing out the test results was a black professor from Boston College, Dr. Janet E. Helms, whose "primary area of expertise" is in "race and culture as they influence performance on tests and other assessment procedures." While Dr. Helms expressed several potential criticisms of the examinations, she "expressly declined the City's offer to review the examinations." No doubt because she wouldn't be able to actually point to anything discriminatory. Dr. Helms testified:
"regardless of what kind of written test we give in this country...we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case."
"no matter what test the City had administered, it would have revealed a disparity between blacks and whites, Hispanics and whites, particularly on a written test."
Id., at 2669.
Besides validating the testing results as basically being just what you would expect, imagine the uproar and condemnation if a white person made the same statement: it doesn't matter how the test is structured, whites will always out perform blacks, especially on written tests.
Based solely on the test results, in other words, the color of the skin of the passing candidates, the City of New Haven refused to certify test results. The minority candidates who didn't pass threatened to sue if the tests were certified based on the disparate impact theory. While the primarily white candidates who did pass threatened to sue if the tests were not certified based on actual disparate treatment.
The City refused to certify the test results and 17 white firefighters and 1 Hispanic firefighter brought suit. Frank Ricci was the lead plaintiff and John DeStafano, Jr. (Democrat), the Mayor of New Haven, was the lead defendant.
The United States District Court for the District of Connecticut, Judge Janet Bond Arterton, a President Clinton appointee, ruled in favor of the City, apparently finding nothing wrong with the City intentionally, knowingly, purposefully, discriminating against the white firefighters. Essentially, the trial court found out-right disparate treatment against whites to somehow be less offensive than mere good-faith fear of disparate-impact against minorities. If this doesn't make sense to you, that's OK, it didn't makes sense to the United States Supreme Court either.
On appeal to the Second Circuit Court of Appeals, a three judge panel unanimously upheld the District Court. The Second Circuit panel consisted of: Judge Rosemary S. Pooler, appointed to the District and Circuit Courts by President Clinton, Judge Robert D. Sack, appointed directly to the Circuit Court by President Clinton and Judge Sonia Sotomayor, appointed to District Court by President George H. W. Bush and to the Circuit Court by President Clinton.
Finally, on appeal to the United States Supreme Court, the decision was reversed. The Supreme Court held:
"Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a focus on statistics could put undue pressure on employers to adopt inappropriate prophylactic measures. Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer's preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. The purpose of Title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color."
Id., at 2675.
In noting the legal prohibition against simply giving extra points on an exam to certain races, the Supreme Court explained:
"If an employer cannot rescore a test based on the candidates' race, then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates-absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision."
Id., at 2676.
Accordingly, the Supreme Court adopted the requirement that there be a "strong basis in evidence of an impermissible disparate impact" before allowing disparate treatment in violation of Title VII. In other words, the City will not be allowed to discriminate against the white firefighters by throwing out their test results (because they were all white) without a strong evidentiary showing either that the examinations were not job-related and consistent with business necessity or that a less discriminatory but equally valid testing alternative existed. The City failed to meet this "strong" burden.
As gross generalizations go, liberals who are successful are arrogant and think they reached the position they did because they are special and no common person could ever achieve what they did. Did someone simply hand out the Presidency to Barack Obama, a position on the Supreme Court to Justice Sonia Sotomayor or a doctorate degree and professorship to Dr. Janet E. Helms? Or, did they work countless hours studying, sacrificing and toiling away to be the best they could be in their chosen career paths? I tend to think the latter. But, once they reach the pinnacle of their professions, these liberals don't look down and say, "Do what I did, bust your butt studying, working and sacrificing and you will likely achieve success in the freest and greatest country in the world." Instead, liberals say, "America is evil. You can't do it. You need help." The solution often involves moving the starting line up or the finishing line back and always involves giving liberals more power to alter and manipulate outcomes to their desired preferences.
Conservatives are just the opposite. We say there is nothing special about us and that anyone can achieve success. We want to focus solely on the equality of opportunity and ignore the color of the outcome. Is the NBA mostly black, the symphony mostly Asian and the firefighters mostly white? Who cares, as long as the best people are playing ball, making the music and fighting the fires. Take a lesson from New Haven firefighter Frank Ricci, study, sacrifice and work harder than the guy next to you and you will overcome adversity and achieve success.
Tonight Daddy made dinner for everyone and took the opportunity to teach a little about eggs.
Everyone learned about the differences between hard boiled, sunny side up, over easy (over rough in this case) and scrambled. After tasting each, the boys decided they liked scrambled the best.
Mama and Daddy each got one of Daddy's special omelets.
It's bath time for Landon.
"Yeah, this is fun!"
"OK, I've had enough."
Drew lost his second tooth tonight.
You can clearly see where it fell out and the two adult teeth that will take it and its neighbor's place.
When Mary was in the hospital after having Landon, she saw a recipe on the Today Show for baby back pork ribs that looked and sounded good. Tonight she made them and they were out of this world! The flavor was indescribable and the meat literally just fell off the bone. In the picture it looks like the ribs were cut in a few places, but that's just where it broke apart on its own from being moved slightly!
And, the left-over sauce makes the world's greatest sloppy joes that can only be described as gourmet!
All the cousins were in town today for an impromptu family get together.
Cousin Gabe was not pleased with me taking his picture.
In fact, he was quite upset with the whole process.
"Just come a little closer Uncle Don, and I'll knock that camera right out of your hands!"
Cousin Gillian doesn't mind being photographed and showing off the most beautiful eyes in the world.
Testing the waters of Ma and Pa's backyard pool.
The seven cousins: Drew holding Landon, Josh holding Gabe, Will, Emma and Gillian.
Pa and Ma and their seven grandchildren: Gillian, Landon, Drew, Gabe, Josh, Will and Emma.
Drew is very helpful with Landon when the little guy needs some comforting while Mama is busy.
Will and Landon are napping partners (Elmo too!).
Is there anything more peaceful than a baby sleeping?
Three brothers: Will, Landon and Drew.
We are really fortunate that the boys get along with each other so well. Both Drew and Will have been nothing but loving, kind and protective of Landon since day one.
As the result of Chrysler's restructuring plan which the Obama administration crammed down the throat of investors, the automaker's secured debt holders, which were owed $6.9 billion, will receive $2 billion in cash, or about 29 cents on the dollar and 0% ownership in the reorganized Chrysler.
While the unsecured UAW (United Auto Workers) retiree health care trust fund which was owed $8 billion will receive $4 billion in cash, 50 cents on the dollar, plus 55% ownership in a reorganized Chrysler.
The U.S. government, which gave Chrysler $8 billion of your and my money, will get 8% ownership and the Canadian government gets 2% ownership.
Italian automaker Fiat, which put up no money, WHICH PUT UP NO MONEY, did I mention they put up no money, will take control of the merged Fiat-Chrysler entity and initially receive a 20% ownership share which can increase to 35%.
Daimler AG which owned 20% of Chrysler, was pressured to give up all its ownership interest, forgive $2 billion in second-lien loans (worse than fully secured but better than unsecured) and, just for fun, contribute $600 million to...have you been paying attention: (a) secured debt holders who have superior rights under the law, or (b) unsecured Obama supporting union thugs? Yes, it goes to the union pension plan of course.
We are no longer a nation of laws but, rather, a nation of men. The law, the Constitution, the Courts, take a back seat to who you know. This and the GM deal were nothing more than the work a thinly veiled socialist paying off the union thugs who helped get him elected.
The union majority owned Chrysler joins Government Motors as manufacturers from whom I will avoid buying from.
Today the DanzFamily.com blog is 5 years old! Over the past five years I've written 719 posts, received 2105 comments and 70 trakcbacks (anyone still do these?), and put up about 1900 pictures. Over a thousand visitors stop by here each day and well over a million have dropped in since inception. (None of the public counters have been in place the whole time.)
It all started shortly after my first son was born and my father died. Since then, my mom and Mary's last grandparent passed away and two more sons were born as well as three cousins. Friends too have passed away, while new ones have been made. During this time, we traveled as a family from San Francisco to Washington D.C., from Chicago to Dallas and many, many points in between.
Because of this blog, I've gotten to hold the flag that Rick Monday saved from being burned, had an image I created pirated by the Drudge Report and later used with permission by Dennis Miller and I've gotten to meet, in person and online, some truly wonderful people.
P.S. According to Google, "blogiversary" appears on the web 143,000 times while "blogoversary" appears 848,000. While the later is more closely related to the accepted term blogosphere, I prefer the former.
[UPDATE:] After this post, I took an unplanned 2+ months off from posting. The longest break since starting this blog, I think. It's been a busy summer. Instead of dumping a whole bunch of posts over a couple of days, I'll put them up with dates corresponding to when the photos were taken.
Drew and Will after soccer practice yesterday at Soccer City.
Today marks the 65th Anniversary of D-Day, the Allied invasion of Normandy, France, during WWII. It remains the largest single-day amphibious invasion of all time involving 195,700 Allied personnel, of which 160,000 were troops, in over 5,000 ships.
"On June 6, 1944, 150,000 Allied soldiers clambered aboard heaving landing craft and braved six-foot swells, waves of machine gun fire, and more than 6 million mines to claim a stretch of sand at a place called Normandy. Their mission was to carve out an Allied foothold on the edge of Nazi-occupied Europe for the army of more than one million that would follow them in the summer of 1944. This army would burst forth from the beachhead, rolling across Europe into the heart of Germany, liberating millions, toppling a genocidal regime, and ending a nightmare along the way. But it all began on this beach in France, with an army of teenagers on a day called D-Day."
"The 65th anniversary of D-Day will find our youngest D-Day and WWII veterans turning 82 years of age. The years to come will find ever fewer of them among us, and fewer still able to travel and share their stories. Because that day will arrive all too soon, the National D-Day Memorial will present "Overlord Echoes" June 4-7, 2009 to allow veterans and the public to share information and perspectives on D-Day with the larger purpose of preserving the lessons and legacy of that decisive moment in history."
"In its historical and human consequences, D-Day is epic. A turning point in the course of the war, D-Day signaled the beginning of the end of the age of fascism and the return of hope to millions in occupied nations globally. Moreover, as the largest land, air, and sea invasion in history, D-Day drew upon human and military resources on an unprecedented scale, one consequence of which was the creation of an unprecedented number of veterans of a single battle. There are more veterans of D-Day than any other engagement in the Second World War, derived from every sector of our population and reflecting a wide variety of backgrounds, each one with a distinct and unique story of D-Day to share - the story of ordinary men and women living in extraordinary times."
"The Normandy American Cemetery and Memorial in France is located on the site of the temporary American St. Laurent Cemetery, established by the U.S. First Army on June 8, 1944 and the first American cemetery on European soil in World War II. The cemetery site, at the north end of its ½ mile access road, covers 172.5 acres and contains the graves of 9,387 of our military dead, most of whom lost their lives in the D-Day landings and ensuing operations. On the Walls of the Missing in a semicircular garden on the east side of the memorial are inscribed 1,557 names."
Finally, from the British Portsmouth's D-Day Museum:
"In April and May 1944, the Allied air forces lost nearly 12,000 men and over 2,000 aircraft in operations which paved the way for D-Day."
"The Allied casualties figures for D-Day have generally been estimated at 10,000, including 2500 dead. Broken down by nationality, the usual D-Day casualty figures are approximately 2700 British, 946 Canadians, and 6603 Americans. However recent painstaking research by the US National D-Day Memorial Foundation has achieved a more accurate - and much higher - figure for the Allied personnel who were killed on D-Day. They have recorded the names of individual Allied personnel killed on 6 June 1944 in Operation Overlord, and so far they have verified 2499 American D-Day fatalities and 1915 from the other Allied nations, a total of 4414 dead (much higher than the traditional figure of 2500 dead). Further research may mean that these numbers will increase slightly in future."
"The [previous] breakdown of US casualties was 1465 dead, 3184 wounded, 1928 missing and 26 captured. Of the total US figure, 2499 casualties were from the US airborne troops (238 of them being deaths). The casualties at Utah Beach were relatively light: 197, including 60 missing. However, the US 1st and 29th Divisions together suffered around 2000 casualties at Omaha Beach."
"Over 425,000 Allied and German troops were killed, wounded or went missing during the Battle of Normandy. This figure includes over 209,000 Allied casualties, with nearly 37,000 dead amongst the ground forces and a further 16,714 deaths amongst the Allied air forces. Of the Allied casualties, 83,045 were from 21st Army Group (British, Canadian and Polish ground forces), 125,847 from the US ground forces. The losses of the German forces during the Battle of Normandy can only be estimated. Roughly 200,000 German troops were killed or wounded. The Allies also captured 200,000 prisoners of war (not included in the 425,000 total, above). During the fighting around the Falaise Pocket (August 1944) alone, the Germans suffered losses of around 90,000, including prisoners."
"Today, twenty-seven war cemeteries hold the remains of over 110,000 dead from both sides: 77,866 German, 9386 American, 17,769 British, 5002 Canadian and 650 Poles."
"Between 15,000 and 20,000 French civilians were killed, mainly as a result of Allied bombing."
With today being the 20th anniversary of the the Chinese government's massacre of innocent protesters at Tiananmen Square, I was curious how President Obama would respond. What words of wisdom would he read from his teleprompters?
Nothing. President Obama is too busy on his second Sorry-Muslims-America-Sucks tour to take notice of the 20th anniversary of Tiananmen Square. Even if he wasn't busy bad-mouthing American abroad, Obama still wouldn't have said anything. He's too dependent on the Chinese communists to purchase his never ending billions of dollars of debt.
This year alone Obama will rack up a budget deficit -- for just this year -- of $1.8 trillion. That's four times greater than any other year...not 40% greater, which would be outrageous...but, rather, more than 400% greater! Of course he's not going to tweak the Chinese about their abysmal human rights record. He can't, he (we) have sold ourselves to the Chinese.
Earlier this week, the U.S. Treasury Secretary Timothy-the-Tax-Cheat-Geithner was in China speaking at Peking University. With China being the largest foreign owner of U.S. Treasury bonds they are, understandably, concerned that the United State's mushrooming budget deficit and ultra-loose monetary policy will undermine the value of their investment. Not to mention that our Commander-in-Chief doesn't exactly think a "bond" means what it's supposed to mean as has been evidenced by his screwing of auto industry bond holders in favor of unsecured creditors. Geithner assured the crowd: "Chinese financial assets are very safe." His comment drew laughter from the audience.
General Motors declared bankruptcy today, which would have been a good thing if it has simply been allowed to fail, gone into bankruptcy, followed the law, unshackled itself of its unmanageable burdens, and emerged a leaner, meaner, more competitive company. But, oh no, this is Amerika in the 21st century, and now the hand of Marx and Lenin rise from the grave and guide our government loving President to take control of GM and pay back his political cronies.
The U.S. government already threw $19.4 billion at GM under the guise of keeping it out of bankruptcy when the real purpose, all along, was to use the funding as an excuse to take control of the company. Now the plan is to give GM another $30 billion of your and my money in exchange for which the U.S. government will own 72.5% of the company. The United Automobile Workers ("UAW") union will be given 17.5% of the company despite the fact that the debt owed to them was unsecured, meaning they should have received nothing. It sure pays to have the President in your back pocket. Meanwhile, the secured creditors get 10% of the company which works out to mere pennies on the dollar for their secured debt. All of this is in gross violation of all of our nation's bankruptcy laws as well as the United States Constitution.
It's like if Peter took out a $100,000 mortgage and offered his home as security for the loan. Then Peter went to his friend Paul and said, "Hey, I'm a trustworthy guy, why don't you loan me $100,000 based solely on my good word." Paul loans Peter the money hoping, but with absolutely no guarantee, that he will get repaid. Peter then goes bankrupt but instead of going through good old regular bankruptcy, the government steps in and, contrary to all laws, dictates how everything is going to work out prior to filing and declares that unsecured Paul will get the house while the secured bank will get the dog house out back.
Contrary to popular
belief lies, GM was not too big to fail. It is only the fourth largest bankruptcy in U.S. history. America would have survived just fine, but it was just too good of an an opportunity for the Obama administration to pass up to have the government take control and ownership of a major corporation.
1. Any of various theories or systems of social organization in which the means of producing and distributing goods is owned collectively or by a centralized government that often plans and controls the economy.
2. The stage in Marxist-Leninist theory intermediate between capitalism and communism, in which collective ownership of the economy under the dictatorship of the proletariat has not yet been successfully achieved.
When it comes to war, liberals are always crying about "exit strategy" even though the only exit strategy a war should have is total victory. So, you'd think liberals would have an exit strategy with regard to government ownership of a private corporation...that is, unless they never really intend the government to give up ownership. So, what is the government's exist strategy for its ownership stake in GM? There is no current plan. You decide why, incompetence or no intention to give up control.
I swear to God that I will never buy an automobile from a state and union owned company. I will not participate in the march toward socialism and the destruction our capitalist free market system which, until government intervention, was the greatest economic engine the world had ever seen.