Bench Memos

Ricci and the Skills Gap”

In a City Journal article, Heather Mac Donald argues that “Judge Sonia Sotomayor’s upcoming confirmation hearings are the perfect occasion to question the assumptions that underlie the race industry, since Sotomayor, with her history of launching racism accusations, has been, and promises to remain, an active participant in it.”  A key excerpt:

The Court’s majority and minority opinions [in Ricci] are assiduously silent about the only reason why anyone views the New Haven firefighters’ exam through the lens of race at all: the gap in cognitive attainment between blacks and whites. As Stuart Taylor pointed out in his National Journal blog, the average black high school senior possesses the academic skills and knowledge of an average white eighth-grader. For decades, blacks have scored 200 points below whites and Asians on the verbal and math SATs. This skills gap means that it is virtually impossible to devise any job test that measures mastery of a body of knowledge and cognitive expertise that will not have a disparate racial result. To discuss black underperformance on any given task without mentioning the skills deficit is like having a discussion about rain and drought without mentioning cloud formation. As long as black underachievement remains unacknowledged, the old standby—racism—will always rush into the vacuum as an explanation for disparate impact.

This ongoing taboo, in judicial discourse and elsewhere, suggests certain questions for Sotomayor during her confirmation hearings. Does she believe that it is unfair to expect minorities to display knowledge through the use of language, and if so, why? In light of the black-white achievement gap, why should disparate results on a cognitive test create any presumption of bias? What kinds of exams would be fair to blacks? Does it lie within the power of minorities to start achieving at higher rates by staying in school, studying harder, and paying more attention in class? We have heard repeatedly about the studying marathon engaged in by the lead plaintiff in the firefighters case, Frank Ricci. None of the many advocates charging bias in the New Haven firefighters’ exam has produced any examples of black firefighters’ expending anywhere near Ricci’s eight to 13 hours a day of preparation. Presumably, if such cases existed, we would have heard about them by now. Is it possible that if more black firefighters had devoted as much effort to studying as the successful candidates did, they would have done better on the exam?