Thursday, March 6, 2014 Issue 1, Volume 1
The New Dork Times
FSU Supreme Court rules against USA Supreme Court in Ricci v DeStefano The Associated Press
In what will likely prove to be a landmark decision, the Supreme Court of the Florida State University Rhetoric and Composition Department unanimously ruled against standardized print-literacy testing for firefighters in the Ricci v DeStefano case Monday evening. The United States Supreme Court ruled on Ricci v DeStefano in 2009 after the New Haven, Connecticut, Fire Department required firefighters interested in pursuing a promotion to take a standardized multiple-choice test to evaluate job knowledge and leadership qualities. After administering the test in 2003, officials found that a disproportionate amount of white firefighters scored higher on the test, and therefore eligible for promotion, when compared to minority firefighters. According the Wikipedia, the top nine applicants eligible for promotion to captain included seven white firefighters, two Hispanic firefighters, and zero black firefighters, while all of the 10 scorers eligible for promotion to lieutenant were white. New York Times coverage of the case indicates that the city threw out the test scores under pressure from minority applicants and out of fear that the city could be sued for race-based discrimination. The city was eventually sued, however, by Ricci and 16 other white firefighters and one Hispanic firefighter who claimed that they were being discriminated against based on previous Court decisions and Title VII, which prohibits employees from racial discrimination at work. The City of New Haven maintained that they discarded the test results as they felt it could already be considered in violation of Title VII by accidentally excluding minority applicants from leadership positions. The case eventually progressed through appellate court, finding its way to the Supreme Court, where justices, in a 5/4 conservative and liberal split, sided with Ricci in the
absence of evidence showing the New Haven test clearly favored one race or the other. Writing for the majority, Justice Kennedy wrote that allowing “employers to discard
the results of lawful and beneficial promotional exams even when there is little if any evidence of disparate-impact discrimination would amount to a de facto quota system. Legal expert Bruce Bowles, Jr., claimed the 2009 Supreme Court decision spiraled out of control. “What should have been a debate over validity became a question of race, ” Bowles said. On Monday, the case was re-opened and presented to the FSU appellate branch of the Supreme Court where
it was heard by Justice Lathan, Justice Azard, and Justice Lang. Unlike the Supreme Court of 2009, the FSU Supreme Court focused on the test, its validity, and the resources available to applicants. Prosecutors Mr. Joseph Cirio and Mr. David Bedsole represented Ricci and the other firemen who lost their promotions when the test scores were thrown out, while the defendants were represented by Ms. Aimee Jones and Ms. Jennifer Enoch. In his opening remarks, Mr. Bedsole addressed the bench with a simple question: “What kind of world to we live in? Do we live in a perfect world or an imperfect world? ” The prosecution explained that all tests, especially those meant to gauge special skills and knowledge, are imperfect and privilege some groups over others. Mr. Bedsole argued that the New Haven test was well designed, vetted, and reviewed by experts before being implemented. The test was not intended to exclude minority applicants, but proved to be imperfect, as so many tools of man are. For the prosecution, though, the question of validity was overshadowed by the question of the hard work and effort Ricci and his fellows put into preparing for the exam. After all, the prosecution argued, all applicants had the same amount of time to prepare for the test and access to the same resources for preparation. “The defense is going to say this test was unjust,” Mr. Bedsole said. “But to throw this test out and start over would remove all the hard work of all the people who were promoted.” In her opening remarks, Ms. Jones addressed the validity of the test, rather than the efforts firefighters spent preparing for the exam. Ms. Jones first challenged the purpose and content of the test itself. “What we really want to know is this: what was this test
Continued on A2 “FSU Overturns Supreme Court
Class notes posted late, but full of character After the activity, Bruce asked the group if we would have switched sides in this debate, had we been given the opportunity. Joe: we know the test isn’t fair, we know that throwing it out isn’t fair either. It’s not their fault that they tried to take the tests. We should throw out the test, but not penalize the people who took the tests. We can’t go back in time and throw out the tests and start over. David : It’s a dilemma; we don’t want to use an unfair test, but we also don’t have any data that really helps us to show that the test is really flawed. Do we keep using the test and see what happens or do we immediately throw it out? I
don’t know what an alternative would look like. Joe : it’s easy to point out the problems, but it’s harder to make a solution.
Bruce: This test was different from others - the multiple choice was weighted much higher than most fire departments require. Also the test was decontextualized - it responded to textbook and not the real city. What if we gave them local information? That could help avoid disparate impact by emphasizing experiential knowledge. Dr. L: Right. What I want to know is can you plug in a damn fire extinguisher? What role is literacy playing in this job? I want to know that
you can perform the duty. This seems like a problem of too much emphasis on the written test and not enough on performance. Joe: How do we gauge leadership? Are we judging them based on writing or on skills? Multiple choice tests are too one-dimensional. Bruce: Maybe a prelim format would be better - a written answer that is then defended orally. Or a technology-based assessment for an entrylevel assessment. But what if disparate treatment is part of a bigger community problem? [Note from Heather: While I was researching this case for the notes, I found that the format
FSU overturns Supreme Court Continued from front page
testing?,” Ms. Jones asked. “What qualities are necessary for a leader? Perhaps, steady command. The ability to make life or death decisions. Experience in difficult situations. How does this test measure those things? The bottom line is this: this was a bad test. Discriminatory or not, it was a bad test.” At this point in the trial, the prosecution threw a Hail Mary, sending in simple country lawyer Mr. Cirio to rebut Ms. Jones’ argument. Mr. Cirio stated that he agreed with Ms. Jones and did not question the invalidity of the test. Mr. Cirio returned the court’s attention to the time, efforts, and sacrifices made by those who diligently prepared for the test. “But let me tell you a story about little Benny Vargas,” Mr. Cirio drawled. “Mr. Vargas was told the benchmarks and knowledge needed to pass the test and advance his career. He took the time and spent his hard earned money on textbooks. He spent countless hours at work with a tutor. Should not he have been rewarded for the time, sacrifice, and work he has given for his community? Next time, we’ll make a better test, but the men who took this test should be rewarded for it. It wasn’t the best test, but we vetted it. We tried.” The defense continued to argue that the test did not accurately measure the skills that would qualify applicants for the promotion. Defense attorney Ms. Enoch continued the argument, saying “We’ve argued that the test does not assess the qualities needed for the position. Mr. Vargas met the benchmark, but the benchmark was wrong. He does not deserve a job where other people’s lives end up in his hands.”
Ms. Enoch also expressed that the defense was sympathetic to the struggles Mr. Vargas, Mr. Ricci and others encountered in taking the test, but was unwavering in her criticisms. “We made a mistake, but we have a responsibility to make sure we get the best and most reliable people for the job, even if the benchmark proves to be incorrect,” Enoch said. In their closing remarks, both the prosecution maintained its emphasis on effort and the design of the test. Mr. Bedsole defended the test as a metric for choosing the new leaders: “The question remains: Do we live in a perfect world or an imperfect world? If it’s an imperfect world, how do we make the best of what we have? The fact remains that this test was chosen to determine the new leaders. There will be other years, there will be other chances to retry the test. Until the defense is able to provide a better test, this test stands. Let each firefighter prove himself for the position.” Undeterred, Ms. Jones called for better and more accurate ways to measure knowledge. “Mr. Bedsole, you have children, don’t you,” Ms. Jones asked. “Who would you rather have drive the bus your children ride to school? The bus driver who drives one hundred percent on memory or the bus driver who has driven a
bus? Exactly. The defense rests.” Ultimately, the FSU Supreme Court ruled unanimously to overturn the 2009 decision. Justice Lang, for the majority, wrote: “The argument made by the prosecution assumes that all the firefighters had access to equal resources, including financial means to obtain textbooks and tutoring, as well as other factors that might have affected the outcome of the tests. We know this to be untrue. Moreover, all sides of this case seem to be in agreement that this test is worthless. Everyone agrees the test is flawed - whether the world is imperfect or not. The court sees no reason to maintain a metric that is so obviously unequal, flawed, and unable to accurately measure that which it seeks to quantify. There may, indeed, have been a time that the test was reliable and the court believes that the city acted with the best intentions. However, we move to strike down the current test in favor of a more experiential test.” The court cited as precedent, the Prendergast v NCTE, wherein the court ruled in favor of Prendergast’s claim that, under circumstances striving to promote equality, we must develop a new paradigm for assessing that equality.
Class Notes Continued Continued from front page
did include an oral portion, but it was still focused on textbook knowledge rather than experiential knowledge]
Joe - On Wikipedia, the passage rate for the test of captain and lieutenant: 64 percent of whites passed; 38 percent of African Americans passed.
Janissa: At the corporation I worked at, we had a lot of problems finding people who could pass our evaluations, so we started testing for the ability to learn the technology. But they did that because they had to - people who would work for a certain salary and would have the skills were hard to come by.
Dr. L: Most people passed the test, but not everyone was eligible for promotion.
Dr. L: I think our reaction to this has a lot to do with our knowledge of the history of tests as a marginalization tool. I’m thinking voting practices where biased test strategies have been used to deliberately exclude African Americans from voting. [at this point the whole class becomes upset that both Janelle and Brittany are missing from class, Dr. Lathan soldiers on] Not knowing the historical consequences of these issues makes us susceptible to the same mistakes again. Did they just figure this out in 2003? Had this been going on before? Bruce: The test was redesigned for the promotions and was meant to help promote minorities. There was a major problem with promotion. There was talk about the history and the historical impact of racial oppression – that argument was there. But I don’t know much about the test that came before and as far as I know this was the first time this test was given. Janissa: We need more information. We need to see the role of the test on failure. How can we know if the test was just a bad test? Bruce: 118 firefighters took the test; 2 minority fire fighters; [At this point, Bruce talks about math and sample sizes or validity - Heather has no idea what it means and is therefore unable to provide transcription, but it seems important. Perhaps Bruce can provide deets in the comments]
Bruce: There were no African Americans up for promotion. Dr. L: There are a lot of pieces here; I see this quote in the material you gave us: “I’m tired of seeing individual achievement take a back seat to race and ethnicity.” [shakes head] Bruce: I think this became too much about race and not about the assessment of the actual test. Dr L: And it’s that post race idea that we don’t’ have to talk about race anymore. Joe: Something about white achievement [At this point Heather gets behind on notes and is unclear as to what Joe actually said, but it was something about white achievement being the gold standard. Perhaps Joe will also elaborate.] Bruce: How does this help us think about moving toward racial justice? Heather: I don’t think there can be blanket legislation for this. So much of these political debates are so local and need to be dealt with in areaand culture-specific ways. Aimee: I agree. How are we supposed to say what’s good for everyone? Joe: We need to know what we mean when we say merit. We need to roll back and say what we really mean. Concepts that feel established aren’t, really. That’s where the Supreme Court comes in. Bruce: Yeah, but the Supreme Court mostly doesn’t care about racial justice.
Joe: Yeah, people don’t realize it’s an issue. Janissa: Or they do realize and don’t want to deal with it. Dr. L: African Americans are starting off 400 years behind - but you hate that you’re getting things just because of your race. I want to know I got a job based on my merit. But on the other hand, we’re talking about assessment. One thing that I hear about a lot is the way that Africancentered ways of knowing get eliminated from the process of making assessments or writing tests. The examples on standardized tests, for example, have had to be changed and re-evaluated. Bruce: Are questions racist? Can they also be classist? Me: But we have to consider communities. [Discussion devolves into states’ rights. Heather accepts responsibility for the digression. Heather apologizes] Dr. L: There are some new school systems that are helping Bruce: That’s how we have to start. We need to think about how schools are funded. Quality of school is too linked to income. Dr. L: They had riots in Detroit over that. In the 70s. People want to hold on to what they have. Bruce: The real problem in the future is the rising cost of higher education. There’s a big difference between a single parent and a kid from an upper-middle class home. That’s a big problem the debt level. These are the issues that are going to keep coming up. Dr. L: There’s this push where class is starting to trump race - there are white students who have to work two or three jobs to go to school. It’s a whole new world *sings* Holmes is talking about race as rhetoric. What does that mean?
Bruce: I think he means that race is part of your world view and you can’t separate them. Joe : If rhetoric is a way of navigating language systems, so race is part of that. Bruce: If race is socially constructed, is ethnicity biological? Joe: But what is the basis for things such as sickle cell anemia. There are some things that are biological. Heather: [At this point, I said something about how I think all of it is socially constructed. The point I was trying to get at is that all differences are socially situated and only matter in so much as a social institution says they do. This was far less eloquent in class] Jen: The biological imparative is important to some; avatar and students pushing for inhabitin a body. Heather: Are we conflating the visible with the biological? Dr. L: Individualism; we don’t want to label an individual as much as we want to criticize the institution. We were talking about this before. Jen: If people are acting unintentionally we label the act racist, but not individual. Dr. L: Racism is an ideology that holds that one race is superior over another - if you do something that’s racist, you believe that you are superio. Janissa: But we put that on environment. People don’t always know that’s what they’re doing people need to have their ideas interrogated. Dr. L: So people doing racist things are racist? [Everyone talks at once and it cannot be interpreted] Dr. L: I’m talking about microagression - things that people don’t understand are racist. Joe: We have to focus on the acts to keep from making people feel attacked by a rhetorical label they don’t identify with. Dr. L: That means that a person who does things that are race-based, unless they’re doing it because they think they’re better than, isn’t racist. In order to be a racist, you have to think you’re better. I can’t think of a better word than microagression. FAMU experience - I don’t believe the people who are asking me if I work at FAMU are racist. They just assume because of the things they think they know. David: So how do you measure intention? How do you know if someone intends to be racist or not? Barring extreme circumstances, but somebody who is just a run-of-the mill-every-day person, how do you know if it’s a whoops or an act of racism? Janissa: If someone calls you out and you do it anyway you might be a racist Bruce: What if they were just raised to be taught that they are better than others? Dr. L: That doesn’t mean they can’t change.
Bruce: But are they morally culpable? Dr. L: YES. If a person chooses to persist in the behavior…. how do we judge intentionality? What did they say? Joe: Labels come from outside most of the time. We have a problem when we ascribe identities to other people based on our perceptions of them. David likes this. Heather, too. Dr. L: That’s one problem with affirmative action. They’re pitting races against each other. We already know there is a problem with institutional racism, but we don’t do anything to stop it. Institutions are perpetuating racist ideas and pitting people against each other. Dr. L will take 1.5 million to figure it out. Bruce: None of the white firefighters were upset about being denied promotions. Nobody asked them. They just split right down the line. The rhetoric of the media at that time was only discussing entitlement of black firefighters. Joe: Obviously we don’t want to call the firefighters racist - but we can call the test racist. People are connected to it, but the problem is for the institution. Dr. L: Well, the institution can’t be racist, but it practices racism. Let’s take the judicial system. We know they aren’t fair. The racism comes with the act. Joe: But if the institution privileges one race over another isn’t it racist? David: I struggle with that. I think institutional racism is a thing. But I don’t know how I define that. If it can be shown that something consistently privileges one over the other, that’s racism. If something happens once, I don’t know. Sometimes individuals are going to score worse.
David: Because sometimes we’re using class as a stand in for race? Heather: Yes, I think so. Dr. L: But we don’t discriminate against poor people the same way. I mean, Affluenza. A lot of people think the OJ Simpson trial was about money. Back to Prendergast - she has a conversation about critical race theory and how this plays in - she says that before Brown, African American people considered themselves outside of the literacy bubble and that access to equal education would provide literacy and racial justice, but now the bubble has burst and public education became devalued as it was desegregated. Bruce: Then police had to take a test because of literacy and HS diploma being devalued. Dr. L: What do we love or hate about this text? Bruce: For me it was the solutions. She talks about reparations, but she talks about corporations and she never says what it looks like. She never says who would get what. She was going against the logic of inherited wealth, and I like her advocating for it, but I don’t understand how it works. Dr. L: I think that’s where she loses it for a lot of people. She compares giving the Native Americans reservations, which is not a good comparison. The Japanese people got reparations for internment. But the part where she talks about a solution but doesn’t tell you how to do it? Bruce: Yeah. So how do we operationalize that ethically? Scholarships for African American students? Dr. L: They do that. Corporations put aside money for a group of underrepresented applicants who might not come back around.
Jen: I would question, within an institutional environment, how do you figure out who the racists are? How do you decide who is racist and who isn’t?
Bruce - I’m thinking of something bigger.
David: When you start using the r-word, it’s like throwing a hand grenade. It’s about blame instead of solutions. Who can we hold this against and who can we demonize. To me, that doesn’t advance the conversation.
Aimee: In the accountability section before that, she brought up modern-day iterations of these literacy tests, she said the point is to break down these barriers, but the day we get equal result is just the day we re-write the tests. So many schools are getting rid of tests, but what does that mean when students get to college?
Bruce: To the institutional thing though. Drunk cops are racist. Dr. L: How do we put that with what Prendergast is saying about racism and literacy?
Dr. L - It’s private funds. The solutions can be sketchy.
Dr. L: You find a college that does the same thing. My grandson goes to Montessori school and he does well, but we aren’t sure how he’d do in another school. But when they get to another school, if we let them use those kinds of learning tools, what happens when they go to someone else’s classroom?
Jen: The difference between race as a belief and race as an action. When one person does something racist, the racism stays with that action even as it leaves the person - if someone makes a racist policy and someone carries the policy for- Joe: When she talked about Reagan, it showed ward, the racism persists. Racism as an action that the problem with testing culture is that can be divorced from persons and choices. we’re constantly worried about benchmarks, which are invented by the institution, which Bruce: One of my favorite points was about are indirect. In FYC we have a research paper property taxes - that does change how people which basically tells us nothing, but they can get get education. Does everyone who disagrees a diploma and what does that even mean? The with me a racist? rewards are made up. A lot of the problem we have comes from the testing culture. Heather: I think that’s part of what makes it dangerous to divorce class from race. Dr. L - do we know other educational systems
that don’t use systems? Janissa: What about Switzerland? Bruce: Some people trade education for military service. Dr. L: You can do that here .You can go work at a challenged school and get some loan forgiveness… and maybe you’ll make it out of there. Janissa: She made this point I thought was interesting - My mom has been a teacher of young kids forever. Prendergast gave an example on page 70 - mothers give orders for children. My mom used to teach in an urban low-income area. The children who came into this program needed to learn their ABCs. Then they have one year olds who don’t know how to speak. Kids in a privileged neighborhood can put together sentences. This shows us that it starts in the home. By the time students are in the 8th grade, the separation between races is crazy. By the time you’re in the 8th grade, you can’t catch up. But they’re tracking this in the 8th grade and no one wants to identify the problem early on. David: As the father of a two-year-old, we talk to our child all the time and she’s really verbal. But why are they so different? Janissa: Because the parent talks to the children differently. White parents may instruct more because they have the knowledge required to do so. African American parents are less instructive so connections are less obvious to students. Joe: White families are more attuned to the culture of education. All I wanted was to be with my friends, but I was put in advanced classes and my parents didn’t know what it meant. If I didn’t have the initiative to do that, parents don’t know the rules to the game they can’t help. Dr. L: And that’s where you get first generation college students. Bruce: Some kids don’t have much going for them after school. David: Sure, but if a family is middle class, that usually implies some level of education. So why does this happen? Dr. L: We’re still not even a generation away from domestic workers. African Americans were out of the home and faced disparities that have a lasting legacy. When she goes after Heath, and no one really called her on this before… not accounting for biases in the data collection is a problem. In Heath’s defense, she tried to do that, but someone kept her from doing it. Bruce: Heath was going to get in trouble no matter what. Aimee: Going back to David’s question, I read a study by Heart that showed the role of class on the words that children were introduced to. Working class doubled welfare. Dr. L: But maybe people just don’t know. I mean, I didn’t know there were people who didn’t have books in the house because I always had books in the house. Jan - Do you mean education or immigrant? Dr. L: Education. Like what Joe was talking
about, there are people who don’t know if they need to put their kid in honors classes. They don’t know and no one is telling them. A lot of people don’t know how to navigate the system. Joe: My parents didn’t know that kind of thing, but my friends did. The communities I was involved with, we had a sense of reciprocity. Dr. L: I was thinking about that with gentrification. There was some pushback against that n Chicago. People had lived there five or six generations and had a community. Then they got separated and the community got lost. That was one of the push backs. Jen: [pointing to quote on page 97] She makes a brief claim about literacy myth being replaced by the standard English myth. None of this is going to solve all of the problems students will encounter. This is just another way to exclude one race or another. Dr. L: So regardless of students mastering AAVE, or SAE, race still comes in. Jen: If we follow that through what Prendergast says about literacy, then SE won’t always be enough either. Dr. L: [pointing to quote on pg 91] Where she talks about Heath’s research as an attempt to create a shared community between home and school where all rules of language are shared by all, the interaction between student/teacher suggests shared community with rules that says some skin colors can dictate the other. The shared understanding demonstrates that students of color end up in paradoxes. Basically what she’s saying is that we are damned if we do and damned if we don’t. Students of color learn the rules and then that’s still not good enough. You’re still going to be judged Jen: The student I wrote about - I encouraged him to write in AAVE, it made sense, but his tutor in the athletic department took it all out. Dr L: I told tutors I allowed students to use AAVE because I am more interested in what they are saying and not how they say it. the director, a black man, pushed back. And I told him when you get a PhD in English, you can tell me how to do it. Jen: that speaks to power, too. I can’t do that as a first year TA. Dr. L: Call me. I’ll go. [end scene]