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PaperclipPerfector  9mo ago (text post)   31927 thread views

Culture War Roundup for the week of July 17, 2023

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A major discrimination settlement has been reached with NYC candidate teachers.

The NY Post is reporting that New York City has reached a $1.8B bias settlement with roughly 5200 Black and Hispanic teachers who failed a New York State teaching certification exam, which prevented them from serving as teachers in NYC public schools. At least 225 would-be teachers will receive payments exceeding $1M (not including ancillary benefits like lifetime pensions for jobs that were never performed).

I am not a lawyer, and I have no familiarity with this kind of litigation, but I was surprised at the settlement. It's possible that NYC got spooked by recent high-profile discrimination lawsuit outcomes (jury verdict against Equinox here, settlement with Fox News here), and it's possible the legal fees and likely result of a trial made settling prudent for NYC. But I wonder whether NYC politicians (or bureaucrats) failed to mount a vigorous legal defense out of ideological sympathy for the plaintiffs.

I also don't see how this kind of settlement - available only to failed candidates based on their race - can satisfy an Equal Protection standard. Won't failed white candidates have a discrimination claim?

Anyway, there's no shortage of culture war angles to this story. NYC famously pays $38,000 per public school student / year, with mediocre outcomes; once again the tax payer seems to get a raw deal. There are the perennial issues around disparate racial impact from ostensibly race-blind hiring practices. The NYT doesn't seem to have reported on this, which raises questions about media coverage. And so on.

I want to focus on a different question, though: to what extent (if at all) do such high-profile, lottery-style bonanzas undermine the case for honest, low-paid toil among the working class? I have a pet theory that the seeming arbitrariness of financial success in America (and perhaps other countries) is a major factor (not the only one!) among prime working age men exiting the labor market. Events like this feel deeply unfair - why work your whole life if you can get paid to not work? And nobody wants to participate in a system that's rigged against them.

The reason the city lost is because the test setters did not have the requisite proof that performance on the test was reflected in performance on the job. It probably was, almost any standardized test like this would be, but their only testing was asking a small number of teachers whether the topics on the test were important to teaching or something.

IQ testing job candidates (even if/when there are outcome differences between groups) is 100% legal in the US. The military does it. Countless civilian employers do it (those famous ‘Google interview questions’ are IQ tests). Police do it. There are companies like Wonderlic, Pearson etc who make a lot of money selling these tests to employers.

But you have to prove the test reflects on-the-job performance within a reasonable period. This is ridiculously easy, employee evaluations and objective measures of success (targets, sales figures, good feedback, etc) will almost certainly reflect intellectual ability with a strong correlation, but you have to put in the work and say “on average, here are the stats that show that the higher you score on this test, the better you do in the job”.

In this case it went against NYC’s politics to argue the test did work, so instead they tried to claim the state made them do it, which seemingly wouldn't have been accepted as an excuse by the court.

But you have to prove the test reflects on-the-job performance within a reasonable period. This is ridiculously easy, employee evaluations and objective measures of success (targets, sales figures, good feedback, etc) will almost certainly reflect intellectual ability with a strong correlation, but you have to put in the work and say “on average, here are the stats that show that the higher you score on this test, the better you do in the job”.

This is another good reason to despise "civil rights" attorneys. Sure, we already know that pretty much every type of job performance correlates with IQ, but if you don't hire the appropriate HR workers and file the appropriate paperwork, you can expect to be sued for racistly not proving that you actually do prefer to hire competent employees.

That’s all lawyers. The law is about technicalities.

Is filing for habeas corpus after your client has been arrested because he criticized the president a technicality?

Yes, there is a lot of rent seeking in the American legal profession, but "all" is a strong word.

I think within the context of civil rights law it’s a fair requirement. Technically you can’t make the test rely on knowing information about schisms in the Catholic Church or halachic law or rudimentary Italian or something to hire only people from the demographic you want if the job has nothing to do with those things. If you disagree with civil rights law then that’s fine, but within the context of it the stipulation makes some sense.

In this case it went against NYC’s politics to argue the test did work,

I sense you did not peruse the linked article, which says tgat the lawsuit was filed in 1996, and "The test was ruled discriminatory in 2012 by the third Manhattan federal judge to handle the case — which included a two-month nonjury trial and repeated trips to an appeals court." That does not sound like the city conceded anything. The recent* development is re the amount of damages.

*Although it isn't recent. The linked article is from 2018.

Edit: OP seems to have changed the link. When I initially clicked the link, it took me here: https://nypost.com/2018/09/19/city-may-have-to-pay-out-1-7b-over-biased-teaching-exam/. Now it takes me here: https://nypost.com/2023/07/15/nyc-bias-suit-black-hispanic-teachers-and-ex-teachers-rich/

The city seemingly agreed to stop fighting the case when DeBlasio set aside the $2bn for compensation. That was at least in part for ideological reasons since it seems unclear why the city couldn’t have appealed to a higher level court - as someone else said, current SCOTUS might well rule all these aptitude tests universally acceptable (ie remove the requirement to prove unequal outcomes are justified by the job’s requirements), and that really isn’t something the kind of person who works in the NYC Department of Education wants.

Again, the city lost because to prove the case it would have to show that the better someone did on the test, the better a teacher they became. This would be trivial to prove even after the fact, since g is correlated with everything, but for some reason the city chose not to do it.

Have we considered that the city is just incompetent?

The city seemingly agreed to stop fighting the case when DeBlasio set aside the $2bn for compensation. That was at least in part for ideological reasons since it seems unclear why the city couldn’t have appealed to a higher level court - as someone else said, current SCOTUS might well rule all these aptitude tests universally acceptable

  1. The trial court verdict on the issue of whether the tests were discriminatory was in 2012. Gulino v. Bd. of Educ. of City School Dist. of NY, 907 F. Supp. 2d 492 (SD New York 2012). That was during the Bloomberg Administration. DeBlasio took office in 2014.

  2. The DeBlasio administration appealed the damages award in 2019. See timeline here

As noted in the current version of the Post article, the City initially prevailed in 2003, but the decision was reversed in part on appeal. As described by the trial court in 2012: "In 2003, after five month bench trial, Judge Motley entered judgment in favor of the Board and SED, finding that their use of the Core Battery exam and the LAST did not violate Title VII. In 2006, the Second Circuit Court of Appeals vacated the District Court's judgment with respect to the LAST, and remanded the case."

As for g being correlated with everything, that might well be true, but is it legally relevant? Because this is how the court described the governing law in 2012:

Under Title VII, an exam is job related — a statutory defense for an employer using an exam with a disparate impact — if it has been properly validated. Validation requires showing, "by professionally acceptable methods, [that the exam is] `predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.'" Gulino IV, 460 F.3d at 383 (quoting Albemarle Paper, 422 U.S. at 431, 95 S.Ct. 2362).

The Second Circuit uses a five-part test for determining whether a content-related employment exam, such as the LAST, has been properly validated and is thus job related for the purposes of Title VII: (1) the test-makers must have conducted a suitable job analysis; (2) the test-makers must have used reasonable competence in constructing the test; (3) the content of the test must be related to the content of the job; (4) the content of the test must be representative of the content of the job; and (5) there must be a scoring system that usefully selects those applicants who can better perform the job. Guardians, 630 F.2d at 95; see also Gulino IV, 460 F.3d at 384.[13] The first two elements of this test concern the quality of the test's development. Guardians, 630 F.2d at 95. These parts are "particularly crucial" because "validity is determined by a set of operations, and one evaluates ... validity by the thoroughness and care with which these operations have been conducted." Id. at 95 n. 14 (internal citation and quotation omitted). The last three factors establish standards that that an exam, "as produced and used, must be shown to have met." Id. The "essence of content validation" is in the third requirement: "that the content of the test be related to the content of the job." M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, No. 98 Civ. 99, 2009 WL 604898, at *14-15 (S.D.N.Y. Mar. 9, 2009) (Curtin, J.) ("M.O.C.H.A. Soc'y I"), aff'd, 689 F.3d 263 (2d Cir.2012).

Honestly, the argument that the City rolled over on a case that was filed in 1996 but not settled until 2023 is difficult to take seriously unless there is a ton of evidence marshaled in its favor.

(1) the test-makers must have conducted a suitable job analysis; (2) the test-makers must have used reasonable competence in constructing the test; (3) the content of the test must be related to the content of the job; (4) the content of the test must be representative of the content of the job; and (5) there must be a scoring system that usefully selects those applicants who can better perform the job.

All of these are applicable to generic IQ tests (verbal and spatial skills are fully representative of a lot of work eg. teachers or really anyone with a job that involves words/numbers/metrics can do).

But the test was not a generic IQ test, was it? The complaint was about a specific test. The issue is whether that test meets the criteria, not whether a generic IQ test would have.

In fact, the plaintiffs originally challenged two tests, but prevailed only re one of them. The other one apparently met the criteria.

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