(Login broncobux) MikeBrownSucks.com Forum Moderator Posted Jul 8, 2009 9:46 AM
"Still wondering how she can vote down the race issue.
The mandate is....you have to pass the test to be promoted..."
Murf, not be disrespectful, but you are out of your league on this one.
The issue is not who gets the better score advances. The issue is whether the test has a discriminatory intent in the way its written or a discriminatory impact (disparate impact) in the way its results ended up.
No racial or ethnic group of similary qualified individuals should pass a test at 50% of what white candidates passed. That is called a disparate impact or the results ended up with unexplained and
illogical results.
Its a Constitutional Law argument and it stems from case law and Title VII, whioch was passed by Congress after the intial Civil Rights Legislation. Its purpose was to remove instances where members of minorities were getting bypassed due to arbitrary exams and b.s. promotions.
In this case, it does not appear to me (at least on its face) that there was a discriminator intent, but the analysis does not stop there. The next hurdle to overcome is whether there were results that could be labeled as discriminatory. When all the black applicants (over 50) take an exam and none gets a promotion even though blacks compromise 40% of the population in New Haven, we have a problem.
However, Justice Kennedy, in his opinion (and arguably from left field) stated that in addition to the tests having a disparate impact there now needs to be a strong basis in evidence that the government entity (New Haven) must also have a strong basis that it will face liability if it certifies the test results (like the ones in New Haven). This standard has never been seen before and is (in my opinion) extremely vague and very arbitrary. In addition, the city was told by severla prominent leaders in the Community that they would be sued if they certifioed the results (damned if they do, damned if they don't).
I have a hard time with Kennedy's opinion based on the fact that there were less discriminatory tests available and the city neglected to use them. To me, that would have solved the problem to begin with. Now we are left with a decision that would appear to me to be useless because it cant or wont be used as precedent (similar to Bush v Gore).
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