Is the Supreme Court justifying discrimination?

Suppose I were a psychologist charged with helping a city identify the best candidates to lead their fellow firefighters into burning buildings and save lives. It isn’t practical to observe every applicant for weeks on the job, so I might try to design some kind of real-life setting analogous to leading a team of firefighters, in which we could gauge people’s performance relatively objectively. So suppose I set up a “field day,” in which colleagues and I rate all of the candidates for promotion as they perform in a series of demanding tasks that require physical ability, mental flexibility, and leadership skills. I could put them onto teams and watch them play, say, basketball and football, so colleagues and I could observe not only how they move and how well they respond in a physically demanding situation, but most importantly, who shows leadership on the court or the field and commands the respect of the other players. It wouldn’t be a perfect proxy for firefighting skill and leadership, but it wouldn’t be a bad one, either.

Used as the sole criterion, however, this field day measure would clearly be imperfect. A firefighter could play a great game of basketball, for example, but have poor organizational skills or a tendency to procrastinate in writing up reports. This method is also vulnerable to a legitimate fairness argument: Black players make up 75 percent of the NBA and 65 percent of players in the NFL but less than 13 percent of the U.S. population. That means they’re excelling over whites at about a 5:1 ratio in these sports. My test would make it likely that 65 to 75 percent of all promotions in fire departments go to African-Americans. In a diverse city like New Haven, where the percentage of African-Americans in the fire department is roughly three times the percentage of blacks in the general U.S. population, there is a high likelihood that no white people would be chosen if there were 15 openings for a promotion.

Fifteen turns out to be an important number, because in 2003, the city of New Haven had 15 openings for promotion in its fire department. They made the cut based solely on the results of a multiple-choice exam and an oral exam, giving more weight to the multiple-choice part of the exam despite the fact that other fire departments recorded substantial disparities between blacks and whites on the multiple-choice exam but not on the oral exam. (The few fire departments that still use a combination of oral and written exams tend to place about twice as much emphasis on the oral rather than the written exam, because they have not witnessed racial disparities in leadership among qualified firefighters, suggesting that the oral exam is less biased.)

As could be predicted from the pattern of results in prior fire departments, the test ended up excluding every black firefighter who applied for promotion--the exact opposite of my “field day” procedure. Seeing that the results defied common sense as well as federal laws designed to prevent unequal (even if unintended) treatment of different groups, the city nullified the results and tried to identify a procedure that was both valid and fair. The white firefighters then sued the city, arguing that its actions constituted “reverse discrimination.”

In a 5-4 decision on Monday, the Supreme Court, splitting along ideological lines, ruled that resegregating fire departments based on a procedure known to do so when other procedures are available is not only reasonable but irreversible by a city as long as the rules for doing so were set out in advance and bear any relationship, however distant, to the requisites of the job. Overturning the opinions of all the lower courts that had reviewed the case, along with decades of legislation and case law since the Civil Rights Act of 1964, the court opined that the city was concerned about the results only because it was worried about lawsuits from black firefighters, and in so doing “turned a blind eye to evidence supporting the exams’ validity.” Thus, the underlying assumption of the majority decision is that an exam that produces racial differences that other tests do not similarly find is a valid exam.


If someone had demonstrated that a multiple-choice test is the best way to predict successful leadership in a fire department, no one could argue with the New Haven exam results. But in fact, no one has ever demonstrated that how well a fireman answers questions on a bubble sheet predicts how well he wields a fire hose when confronted with a fire, let alone how well he can lead his fellow firefighters into burning buildings. In fact, if Woody Allen studied a couple of books on firefighting and took the exam, I suspect he’d do a lot better than virtually all of the firefighters who passed it, regardless of their color. But frankly, I’d feel a lot more confident with firefighters of any race or color leading the charge into my burning home than Woody Allen.

It’s one thing to know the “rules” of firefighting. It’s another to be able to move into action at a moment’s notice and actually perform the actions required to save lives and homes in a crisis. The distinction is between what cognitive scientists sometimes call declarative and procedural knowledge--that is, between knowledge you can consciously “declare” and knowledge that automatically “comes out” in your behavior. Imagine asking a tennis player and a physicist how a tennis player should adjust her feet and swing her racquet if the ball comes 35 percent faster and at a 40 degree angle to the right of what she had anticipated. I’d bet on the physicist in the oral exam to explain how she should adjust but on the tennis player on the court to know how to adjust in real time.

There’s one other factor oddly missing from the procedure the city established to promote firefighters: actual performance. The best predictor of future behavior is generally past behavior. So it might have made sense to crack open the files of the firefighters who had applied for promotion and perhaps just take a peek to see who had blemished, unblemished, or distinguished careers, or to ask their supervisors and peers to evaluate them. None of these factors were even considered by the fire department in narrowing down candidates to consider for promotion.

The problem with looking at past performance, of course, is its subjectivity, and like any single measure, it would be vulnerable to bias. That’s why when scientists (and competent psychologists) want to understand something well enough to predict it, they take multiple measurements with the best instruments at their disposal, to see if they converge on the same results. The best way to reduce error, particularly systematic error that can bias the results in one direction or another, is to use a combination of measures that differ substantially from each other (such as the field test, the written test, the oral test and an assessment of past performance for firefighters), which are all likely to get at some aspect of what’s needed for optimal performance but aren’t likely to share the same errors and the same direction of bias.

Until the Ricci decision, that was also the law: If you had reason to believe that reliance on one criterion or test had led, or is likely to lead, one group of people to be unfairly affected, you had an obligation to try to find or design a better way of making the decision that didn’t build in that bias--whether that bias produced a leadership team resembling a cross-section of the NBA or the PGA before Tiger Woods.


The question the Supreme Court was actually ruling on was a simple one: Is it really plausible that only members of one racial group are capable of leadership, particularly in a diverse city with a diverse fire department? The majority concluded that it is. It argued not only that the multiple-choice exam was a valid predictor of performance, but that one can assume it is at least as valid as the procedures used by most other fire departments that don’t produce such racially lopsided results, even more real-life assessment procedures akin to a firefighting “flight simulator.”

I don’t personally know the five justices in the majority on the Ricci decision, although I feel reasonably confident that they, like most Americans, are people of good faith, who strongly believe that no one should be discriminated against in this country based on their race, ethnicity, or gender. But the Supreme Court demonstrated this week that you don’t have to hold consciously racist beliefs to make decisions that promote discrimination based on race--stridently validating a test whose outcomes precisely match the outcomes reached 50 years ago when employers were purposefully using discriminatory procedures. Their decision seems to illustrate the unconscious prejudices that psychologists have been studying for two decades, which could explain the readiness of the majority of the court to believe that in a racially diverse city with a racially diverse fire department, it is perfectly plausible that the best candidates for leadership are all white.

These kinds of unconscious biases, which most of us share to one degree or another (as when I reflexively check my wallet if a young black man accidentally bumps into me in a crowded train), are the contemporary legacy of Jim Crow in a society that has come a very long way since 1964. They are the kinds of biases that lead to stiffer sentences for criminals who commit the same crime depending on the darkness of their skin and the extent to which their facial features are more African; the greater likelihood that a young white male with a criminal record will get called for a job than a young black male without a record; or the fact that presenting the face of a black man subliminally leads to activation of fear circuitry in most white people’s brains.

That is where most prejudice lives today--in the dark recesses of our minds, not in our conscious values. Unfortunately, the right to make decisions based on unconscious prejudices, which produce outcomes identical to those made by people with consciously racist intent five decades ago, was affirmed today by the Supreme Court. Perhaps Judge Sotomayor is more badly needed on that court than any of us could have imagined.

Drew Westen is Professor of Psychology and Psychiatry at Emory University, founder of Westen Strategies, and author of The Political Brain: The Role of Emotion in Deciding the Fate of the Nation.

By Drew Westen