Supreme Court nominee Judge Sonia Sotomayor is taking heat for being a member of the three-judge panel in Ricci v. DeStefano, a case filed by seventeen white firefighters and one Latino firefighter who were the top-scorers on a multiple-choice firefighter exam.  The case is currently under consideration by the U.S. Supreme Court and has prompted conservatives like Rush Limbaugh and Ann Coulter to label Judge Sotomayor as a “reverse racist.” 

But, there is good reason to believe that the white and Latino firefighters who sued were not the most qualified for promotion.  In reality, the issue in Ricci is not reverse discrimination against better-qualified white candidates.  It is a question central to the lives of every American, of every race — “Is the person with the highest multiple-choice test score necessarily the most qualified?”

So, in contrast to the typical reverse discrimination case, it is the qualifications of those who filed the lawsuit that are in question. The Ricci oral argument suggests that the justices are likely to split along familiar 5-4 ideological lines, with Justice Anthony M. Kennedy as the deciding vote. What has not been made clear in media reports about the case is how different it is from situations where less-qualified minorities benefited from racial preferences.

The reality is that several minority firefighters performed very well on the firefighter exam. Out of more than 100 candidates competing for the seven vacant captain positions and eight open lieutenant positions, Latino firefighters ranked in seventh, eighth and 13th place on the captain list and African American firefighters ranked in 14th, 15th, and 16th place on the lieutenant list. But because of a rule requiring promotions to be doled out in strict rank order, all eight of the lieutenant positions would definitely have gone to whites, who ranked first through 10th on the list, and six of the seven captain positions were likely to go to whites, as well, because they ranked first through sixth.

This is what put New Haven officials between a rock and a hard place or, as Justice David H. Souter said from the bench during oral argument last month, in a “damned-if-you-do-damned-if-you-don’t situation”. The city’s attorney told officials they could be sued by the high-scoring African American and Latino test-takers for violating federal civil rights laws unless they had scientific evidence to show that the white candidates were truly more qualified than the minorities who would be passed over for promotion.  This and other comments made by Justice Souter, the justice whom Judge Sotomayor has been nominated to replace, signal that he, like Sotomayor, views New Haven’s actions as constitutionally valid.  

As a legal matter, employers are prohibited from using tests that have an unjustified racially “discriminatory effect.” It is undisputed that if the list had been certified by city officials, the 2003 promotions would have been so disproportionately white it would have violated federal employment discrimination guidelines. When an employer selects one racial group at higher rates than other racial groups in violation of these guidelines, known as “the four-fifths rule,” members of the adversely affected group have grounds to sue in federal court for race discrimination.

In this case, if minority firefighters had filed a lawsuit, the burden would fall on the city of New Haven to present a scientific justification that the whites who were selected are better qualified than the minority applicants who were not promoted.

Like all standardized tests, the New Haven firefighter multiple-choice test was neither all-powerful nor perfectly precise. The reality is that there is not a clear scientific basis for concluding that the 17 white candidates and one Latino candidate, who were ranked at the top of the lists, were more qualified than the African American and Latino officers who had high scores on the test but ranked slightly lower. As a group of employment testing experts has explained in their own brief to the Supreme Court, the city of New Haven could not prove that ranking in the top-10 of over 70 test-takers means you are truly more qualified than someone who ranked in the top-15.

First, the city did not have a good scientific basis for the amount of weight it placed on the multiple-choice test — 60 percent of a firefighter’s rank on the list. In a neighboring city, Bridgeport, Conn., the fire department only gave the multiple-choice test a 30 percent weighting.

Second, using the lieutenant list as an example, we cannot be certain that the top-10 firefighters (all of whom were white) were more qualified than the top-15 firefighters (two of whom were African American) because the company that made the New Haven firefighter test has admitted that the exam does not measure important skills for the job in question. In fact, it is undisputed that the New Haven firefighter exam was not designed to measure command performance or supervisory skills.

As explained in the Supreme Court brief filed by the employment testing experts, one of the important qualities distinguishing a good fire officer from a good entry-level firefighter is that supervisory officers must have a “steady presence of command so that the unit will follow orders and respond correctly to fire conditions.” Firefighters need “command presence” in order to lead their command units in safely and effectively fighting fires.

Finally, New Haven had reason to believe it might lose a lawsuit filed by minority firefighters because there were less racially discriminatory tests available to identify the firefighters most qualified for promotion. For instance, employment testing experts have found that “assessment centers” — facilities that test firefighters using standardized job-simulation exercises — do a better job than multiple-choice tests of weeding out firefighters who are “book smart, but street dumb.” These centers compare entry-level firefighters based on their ability to do real-world tasks that are typically performed by a firefighter “on the job” instead of comparing how well they answer questions about firefighting on a pencil-and-paper multiple-choice test.

In fact, there is every reason to believe that the firefighters who filed the Ricci lawsuit would not have ranked in the same position on the list had New Haven evaluated firefighters at an assessment center.  In addition to resulting in fewer racial differences in test scores, research shows that the white firefighters who perform best on multiple-choice tests do not always fare as well on tests at assessment centers that simulate real-world firefighting tasks.  In other words, using test scores from assessment centers leads to both to the promotion of greater numbers of minority firefighters and results in the promotion of different, more qualified white firefighters.

Thus, there is a strong argument that promoting firefighters based on their performance in job simulations increases more than racial diversity in the upper ranks of fire departments. It increases public safety.

In most cases challenging standardized testing, the issue is whether test scores were used properly. Here, instead of claiming that the city used a test improperly, firefighters are suing a city for putting a stop to its own improper use of a standardized test. Even in our increasingly test-centered society, this is a striking claim. The city was right to put a halt on promotions because there is no proof that those at the top of the list were more qualified than those firefighters ranked just below them.

About the Author: Kimberly West-Faulcon is a constitutional law professor at Loyola Law School, Los Angeles. Her most recent research on the legal implications of the psychometric properties of standardized tests, “The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws,” appears in the current volume of the University of Pennsylvania Law Review.

A version of this op-ed originally appeared in the Los Angeles Daily Journal on May 13, 2009. Reprinted with permission by the author.