»  National Review Online

April 24, 2009

  The Husks of Dead Theories

This week the Supreme Court hears Ricci v. DeStefano, the case of the 20 firefighters in New Haven, Connecticut. The plaintiffs took promotion exams five and a half years ago. As they themselves say on their website (scroll down to CASE SUMMARY):

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.

(There is a bit of squid ink there. In fact only one of the plaintiffs is Hispanic. The average scores for the Hispanic test-takers were around the 20th percentile of non-Hispanic white test takers. That is, around eighty percent of non-Hispanic whites had better scores than the average Hispanic. The performance of black test-takers was similar to that of Hispanics.)

Once the city of New Haven realised that no black test-takers, and only one Hispanic, had reached the pass mark, they threw out the test. 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 had little choice. If they'd promoted those who passed the test, they'd have been sued by disgruntled black and Hispanic test-takers. Having thrown out the test results to avoid this outcome, they are now being sued by white (and one Hispanic) examinees. Discrimination law gets you coming and going.

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. New York City Police Department was fighting lawsuits over "discriminatory" test results thirty 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, or just giving up on tests altogether, as New Haven has now done.

None of it helped, though just dumbing down the tests has proved fairly effective for litigation-avoidance. (In 1991 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 a hundred thousand dollars in fees to these firms.

It did no good, of course. It never does. New York Police Department spent ten years trying to write tests for promotion to Sergeant that would pass court approval. Concluding at last that any test that required reading would deliver results biased against minorities, they worked up a series of video-based tests. Just 1.7 percent of African American test-takers passed them.

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, 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 equal 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 1985-97. Under a judge's order, the school district spent two billion dollars 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 teacher 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 bureaucratic and political straitjacket." True, no doubt; but New Haven, pop. 124,000, is not a big city. Test-score gaps are in plain sight out here 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 pseudotheories 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 of 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.

Date Title Author(s)
1986   The Raising of Intelligence: A Selected History of Attempts to Raise Retarded Intelligence Herman Spitz
1989   Invisible Victims: White Males and the Crisis of Affirmative Action Frederick Lynch
1991   Illiberal Education Dinesh D'Souza
1992   Two Nations : Black and White, Separate, Hostile, Unequal Andrew Hacker
1992   The Color-Blind Constitution Andrew Kull
1992   A Question of Intelligence: The IQ Debate in America Daniel Seligman
1992   Paved with Good Intentions: The Failure of Race Relations in Contemporary America Jared Taylor
1992   Forbidden Grounds: The Case Against Employment Discrimination Laws Richard Epstein
1993   Race Matters Cornel West
1994   The Bell Curve: Intelligence and Class in American Life Richard Herrnstein and Charles Murray
1994   Civil Wrongs: What Went Wrong with Affirmative Action Steven Yates
1995   The Diversity Myth: "Multiculturalism" and the Politics of Intolerance at Stanford David Sacks and Peter Thiel
1995   The End of Racism Dinesh D'Souza
1995   The Bell Curve Wars: Race, Intelligence, and the Future of America Ed. Steven Fraser
1995   The New Color Line: How Quotas and Privilege Destroy Democracy Paul Craig Roberts and Lawrence Stratton
1995   Private Truths, Public Lies: The Social Consequences of Preference Falsification Timur Kuran
1995   Dreams from My Father: A Story of Race and Inheritance Barack Obama
1996   The Affirmative Action Fraud Clint Bolick
1996   Race vs. Class: The New Affirmative Action Debate Ed. Carol Swain
1996   The Ironies of Affirmative Action: Politics, Culture, and Justice in America John Skrentny
1996   The Coming Race War; and Other Apocalyptic Tales of America after Affirmative Action and Welfare Richard Delgado
1996   Backfire: A Reporter's Look at Affirmative Action Robert Zelnick
1996   Ending Affirmative Action: The Case for Colorblind Justice Terry Eastland
1997   The Race Card Eds. Peter Collier and David Horowitz
1997   The Diversity Machine: The Drive to Change the "White Male Workplace" Frederick Lynch
1997   Why Race Matters: Race Differences and What They Mean Michael Levin
1997   America in Black and White: One Nation Indivisible Stephan and Abigail Thernstrom
1998   The Shadow University: The Betrayal of Liberty on America's Campuses Alan Kors and Harvey Silverglate
1998   The g Factor: The Science of Mental Ability Arthur Jensen
1998   The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions William Bowen and Derek Bok
1998   The Black-White Test Score Gap Eds. Christopher Jenks and Meredith Phillips
1998   Affirmative Action and Minority Enrollments in Medical and Law Schools Susan Welch and John Gruhl
1998   Someone Else's House: America's Unfinished Struggle for Integration Tamar Jacoby
1999   Hating Whitey and Other Progressive Causes David Horowitz
1999   By the Color of our Skin: The Illusion of Integration and the Reality of Race Leonard Steinhorn and Barbara Diggs-Brown
2000   PC, M.D.: How Political Correctness is Corrupting Medicine Sally Satel
2001   Coloring the News: How Crusading for Diversity Has Corrupted American Journalism William McGowan
2002   The New White Nationalism in America: Its Challenge to Integration Carol Swain
2002   Beyond the Color Line: New Perspectives on Race and Ethnicity in America Eds. Stephan and Abigail Thernstrom
2002   Collision Course: The Strange Convergence of Affirmative Action and Immigration Policy in America Hugh Graham
2003   Black American Students in an Affluent Suburb: A Study in Academic Disengagement John Ogbu
2003   Diversity in America: Keeping Government at a Safe Distance Peter Schuck
2003   Diversity: The Invention of a Concept Peter Wood
2003   Kill the Messenger: The War on Standardized Tests Richard Phelps
2003   No Excuses: Closing the Racial Gap in Learning Stephan and Abigail Thernstrom
2004   The Shame of the Nation: The Restoration of Apartheid Schooling in America Jonathan Kozol
2004   Affirmative Action Around the World: An Empirical Study Thomas Sowell
2004   Race: The Reality of Human Differences Vincent Sarich and Frank Miele
2005   The Affirmative Action Hoax: Diversity, the Importance of Character, and Other Lies Steven Farron
2006   The Covenant with Black America Tavis Smiley

I believe that's a pretty fair selection of good-quality books on race and affirmative action over the past quarter-century. Here's how it breaks down in five-year periods, with number of books per period:

1985-1989     2
1990-1994     9
1995-1999     24
2000-2004     13
2005-2009     2

Even if I'm off by a few, there was plainly a great flowering of books on these topics in the mid-to-late 1990s and early 2000s, tapering off since. 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.A., 1973-78, I recall none at all — and I was a keen reader, belonged to Book-of-the-Month Club and 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); and the book that was made from the Moynihan Report, The Negro Family (1963), 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 Negro movies about that time of various degrees of sociological depth, from Guess Who's Coming to Dinner (1967) to three-hankie features like Lilies of the Field (1963). (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 the following 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, like "social churchgoers," but in our hearts we no longer believed any of it …

… yet 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 one of the Fawlty Towers programs, after Basil Fawlty has gotten the hotel into another hopeless situation, Sybil groans: "I don't believe it!"

Basil:  "Neither do I. Perhaps it's a dream."  [Bangs his head on the desk several times, sits up, looks around.]  "No, it's not a dream. We're stuck with it."

So we are — stuck with it, and with our own psychic 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 Supreme's 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.