Politics & Policy

The Husks of Dead Theories

A Supreme Court case will address hiring discrimination against whites.

This week the Supreme Court heard Ricci v. DeStefano, the case of the 20 firefighters in New Haven, Conn. As the firefighters themselves say on their website:

We are a group of lieutenants and firefighters in the New Haven Fire Department who underwent a grueling multi-phase civil service examination process to qualify for promotions to the command ranks of Captain and Lieutenant. In early 2004, the city needed to fill vacancies in both ranks. Although we were deemed the most qualified candidates, we were denied the promotions because we are White or Hispanic and not enough Black candidates succeeded.

Nobody has been promoted. This is of course unfair to the test-takers — not to mention the citizens of New Haven — but in the convoluted state of current discrimination law, the city could have done nothing to avoid a lawsuit. If they’d promoted those who passed the test, they’d probably have been sued by disgruntled black and Hispanic test-takers instead. (There is a bit of squid ink in the quote above: Only one of the test-takers denied a promotion was Hispanic. Overall, Hispanics did about as well as blacks did. Around 80 percent of non-Hispanic whites had better scores than the average Hispanic.)

There is nothing new here, of course. Given the history of this subject, the really surprising thing is that as late as 2003 a fire department was still giving formal examinations for promotions. The New York City Police Department was fighting lawsuits over “discriminatory” test results 30 years ago. Police, fire, and other municipal departments all over the country have been similarly affected across an entire generation.

Attempted solutions have included every kind of rigging and “race norming” of results, the dumbing-down of the tests to a point where well-nigh everyone passes (candidates then being promoted by lottery or straightforward race quotas), the hiring of expensive consultants to devise bias-free tests, and just giving up on tests altogether, as New Haven has now done.

None of it helped, though dumbing down the tests has proved fairly effective for litigation avoidance. (In 1991 the New York City Sanitation Department gave a test on which 23,078 applicants out of 24,000 got perfect scores — try spotting a race gap there!) The careful concocting of scrupulously bias-free tests is now a profitable specialty within the management-consulting field. New Haven hired the Houston firm of Jeanneret & Associates, Inc., who called in a contractor named I/O Solutions to devise firefighter tests, and the city spent over $100,000 in fees to these firms.

It did no good, of course. It never does. The New York Police Department spent ten years trying to write tests for promotion to sergeant that would pass court approval. They brought in minority representatives to help design the 1988 tests, and included video portions. It didn’t help: A quarter of the 12,000 police officers who took the test were minorities, but of the 377 test-based promotions, only 20 went to minorities.

The unhappy fact is that different ethnic groups exhibit different profiles of results on tests. Attempts to devise a test on which this does not happen have all failed, across decades of effort, criticism, and analysis.

Nobody knows why this is so; but the fact that it invariably, repeatedly, and intractably is so, makes testing hazardous — and ultimately pointless — under current employment law. Yet still employees must be selected somehow from applicant pools, and there must be some clear, fair criteria for their subsequent promotion. The state of the law now is that almost anything an organization does in this area will open it to litigation.

Ricci v. DeStefano takes place in a time of general public exhaustion over racial inequalities. We’d really rather just not think about it. Fifty years ago it all seemed cut and dried. Just strike down old unjust laws, give the minority a helping hand, give the non-minority some education about civil rights and past disgraces, and in a few years things will come right.

We coasted along under those assumptions for a generation. When it became obvious that things were not coming right in the matter of test results, scholars and jurists got to work on the problem.

Liberals, with their usual coarse stupidity, naturally assumed it was just a matter of spending more money on schools. This theory was tested to destruction in several places, most sensationally in Kansas City from 1985 to 1997. Under a judge’s order, the school district spent $2 billion over twelve years, pretty much rebuilding the school system — and the actual schools themselves — from the ground up. The new, lavish facilities included “an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.” The experiment was a complete failure. Drop-out rates rose and test scores fell across the entire twelve years. Here are current test scores for the school that got the Olympic-sized swimming pool. (I could not find any published results for achievement in aquatic sports.)

Conservatives, thoroughly race-whipped by the liberal media elites, preferred to go along with whatever liberals said, except that they made, and still make, mild throat-clearing noises about school vouchers. It has turned out in practice, however, that the only people keen on school vouchers are the striving poor, a small (and dwindling) demographic with no political weight, and whom nobody in the media or academic elites gives a fig about. The non-striving underclass has zero interest in education; middle-class suburbanites like their schools the way they are, thanks all the same; and teachers’ unions see vouchers as threats to the public-education gravy train their members ride to well-padded retirement.

As test gaps persisted and lawsuits multiplied, the scholars retreated into metaphysics. The word “culture” was wafted around a lot. It seemed to denote a sort of phlogiston or luminiferous aether, pervading and determining everything, but via mechanisms nobody could explain. We heard about self-esteem issues, “the burden of ‘acting white,’ ” “stereotype threat,” and a whole raft of other sunbeams-from-cucumbers hypotheses. Stephan and Abigail Thernstrom, two distinguished scholars in the field, produced a much-praised book about test-score gaps with a conclusion in which nothing was concluded. “Choice [of where to live] should not be a class-based privilege.” Where, in a free society, has it ever not been? How will you stop people moving, if they can afford to? “Families must help their children to the best of their ability.” Oh. “Vouchers are a matter of basic equity.” See above. “Big-city superintendents and principals operate in a bureacratic and political straitjacket.” True, no doubt; but test-score gaps are in plain sight even out in the ’burbs. John Ogbu wrote a book about it. Six years ago.

And the test-score gaps just sat there, and sat there, and sat there, grinning back at us impudently.

At last, we just stopped thinking about the whole disagreeable business. Unfortunately, by that time a great body of law had been built on the theories and pseudo-theories of the preceding decades, and couldn’t be wished away. Hence Ricci v. DeStefano.

You can deduce our state of exhaustion from booksellers’ lists. I just spent half an hour trawling through the bibliographies and references in my own modest collection of social-science literature to come up with the following list of 50 published books, most by accredited scholars, relevant to Ricci v. DeStefano and the issues underlying the case. I offer it to the Supremes as a reading list, if they’d like to get up to speed on the necessary sociology.





The Raising of Intelligence: A Selected History of Attempts to Raise Retarded Intelligence

Herman Spitz


Invisible Victims: White Males and the Crisis of Affirmative Action

Frederick Lynch


Illiberal Education

Dinesh D’Souza


Two Nations : Black and White, Separate, Hostile, Unequal

Andrew Hacker


The Color-Blind Constitution

Andrew Kull


A Question of Intelligence: The IQ Debate in America

Daniel Seligman


Paved with Good Intentions: The Failure of Race Relations in Contemporary America

Jared Taylor


Forbidden Grounds: The Case Against Employment Discrimination Laws

Richard Epstein


Race Matters

Cornel West


The Bell Curve: Intelligence and Class in American Life

Richard Herrnstein and Charles Murray


Civil Wrongs: What Went Wrong with Affirmative Action

Steven Yates


The Diversity Myth: “Multiculturalism” and the Politics of Intolerance at Stanford

David Sacks and

Peter Thiel


The End of Racism

Dinesh D’Souza


The Bell Curve Wars: Race, Intelligence, and the Future of America

Ed. Steven Fraser


The New Color Line: How Quotas and Privilege Destroy Democracy

Paul Craig Roberts and Lawrence Stratton


Private Truths, Public Lies: The Social Consequences of Preference Falsification

Timur Kuran


Dreams from My Father: A Story of Race and Inheritance

Barack Obama


The Affirmative Action Fraud

Clint Bolick


Race vs. Class: The New Affirmative Action Debate

Ed. Carol Swain


The Ironies of Affirmative Action: Politics, Culture, and Justice in America

John Skrentny


The Coming Race War; and Other Apocalyptic Tales of America after Affirmative Action and Welfare

Richard Delgado


Backfire: A Reporter’s Look at Affirmative Action

Robert Zelnick


Ending Affirmative Action: The Case for Colorblind Justice

Terry Eastland


The Race Card

Eds. Peter Collier and

David Horowitz


The Diversity Machine: The Drive to Change the “White Male Workplace”

Frederick Lynch


Why Race Matters: Race Differences and What They Mean

Michael Levin


America in Black and White: One Nation Indivisible

Stephan and Abigail Thernstrom


The Shadow University: The Betrayal of Liberty on America’s Campuses

Alan Kors and

Harvey Silverglate


The g Factor: The Science of Mental Ability

Arthur Jensen


The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions

William Bowen and

Derek Bok


The Black-White Test Score Gap

Eds. Christopher Jencks and Meredith Phillips


Affirmative Action and Minority Enrollments in Medical and Law Schools

Susan Welch and

John Gruhl


Someone Else’s House: America’s Unfinished Struggle for Integration

Tamar Jacoby


Hating Whitey and Other Progressive Causes

David Horowitz


By the Color of Our Skin: The Illusion of Integration and the Reality of Race

Leonard Steinhorn and Barbara Diggs-Brown


PC, M.D.: How Political Correctness Is Corrupting Medicine

Sally Satel


Coloring the News: How Crusading for Diversity Has Corrupted American Journalism

William McGowan


The New White Nationalism in America: Its Challenge to Integration

Carol Swain


Beyond the Color Line: New Perspectives on Race and Ethnicity in America

Eds. Stephan and

Abigail Thernstrom


Collision Course: The Strange Convergence of Affirmative Action and Immigration Policy in America

Hugh Graham


Black American Students in an Affluent Suburb: A Study in Academic Disengagement

John Ogbu


Diversity in America: Keeping Government at a Safe Distance

Peter Schuck


Diversity: The Invention of a Concept

Peter Wood


Kill the Messenger: The War on Standardized Tests

Richard Phelps


No Excuses: Closing the Racial Gap in Learning

Stephan and Abigail Thernstrom


The Shame of the Nation: The Restoration of Apartheid Schooling in America

Jonathan Kozol


Affirmative Action Around the World: An Empirical Study

Thomas Sowell


Race: The Reality of Human Differences

Vincent Sarich and

Frank Miele


The Affirmative Action Hoax: Diversity, the Importance of Character, and Other Lies

Steven Farron


The Covenant with Black America

Tavis Smiley

As you can see from the list, which I believe to be a pretty fair selection of good-quality books on race and affirmative action over the past quarter-century, there was plainly a great flowering of books on these topics beginning in the mid-to-late 1990s and tapering off after the early 2000s. Almost half the list’s books were released between 1995 and 1999, another quarter between 2000 and 2004.

Before that? Well, I don’t recall much in the way of race books from the early 1980s. In my first tour of duty in the U.S., 1973–78, I recall none at all — and I was a keen reader, belonging to the Book-of-the-Month Club and the History Book Club (from one of which I got Eugene Genovese’s fine 1974 slavery book Roll, Jordan, Roll, but I don’t think that counts in this context).

Further back than that, I remember in my college days in the early 1960s — and this was in England — everybody was reading John Howard Griffin’s Black Like Me (1961); the book that was made from the Moynihan Report, The Negro Family (1965), was much discussed, though I don’t know how many English people read it (I didn’t). We’d all at least heard of Invisible Man (1952) and Native Son (1940), though again, I don’t know how many people actually read them (not me). There were also lots of black-themed movies of various degrees of sociological depth, from Guess Who’s Coming to Dinner (1967) to three-hankie features like Lilies of the Field. (Though the one I liked best from that broad period was Cooley High [1975].)

On this (I’ll admit not-very-solid) basis, I put forward a hypothesis: From the mid-1960s to the mid-1980s, having got rid of unjust laws, we were patiently waiting for things to equal out via education and the workings of the meritocracy. From the mid-1980s to the mid-2000s, baffled that things were not equaling out, we devoted ourselves to cooking up theories about why this was so, and what might be done about it. From the mid-2000s onward, confronted at last with the emptiness of all the theories, and with our inability to move any of the needles even a millimeter on their dials, we gave up. We still clapped along to the happy-face rhetoric, but in our hearts we no longer believed any of it.

. . . yet we were still stuck with all that accumulated jurisprudence, the husks and dried shells of false hopes and abandoned theories. That’s the law we live with today.

In a Fawlty Towers episode, after Basil Fawlty has gotten the hotel into another hopeless situation, Sybil groans: “I don’t believe it!” Basil responds, “Neither do I. Perhaps it’s a dream,” bangs his head on the desk several times, sits up, and looks around. “No, it’s not a dream. We’re stuck with it.”

So we are — stuck with it, and with our own inability to face it. The result is the Mad Hatter’s Tea Party of current “discrimination law,” a domain governed by anti-logic, in which, if you do this, you are discriminating, and if you do the opposite thing, you are discriminating, and if you go to bed, hide your head under the pillows, and do nothing at all, you are still discriminating.

That’s how Frank Ricci and the city of New Haven have ended up before the U.S. Supreme Court; and that’s why there is nothing, utterly nothing, to hope for from the Supremes’ eventual ruling but one more fold in the convoluted topology of race jurisprudence, and more “discrimination” lawsuits to come, and then more, for ever and ever, to the very crack of Doom.


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