We are not talking about somebody coming around to read your water meter, we are talking about life and death situations often in very exposed in dangerous places. The firefighter' s risks are many fold those of a policeman on the beat so the hiring of firefighters is not a place for social engineering and for affirmative action. You are looking for action heroes not for models to pose in a Gap advertisement.
It is regrettable that the test in question contained a 40% subjective element which was the interview. It makes the case for the white fire fighting applicants less objective. Nonetheless, we can make some observations.
The Case law as I understand it from this article is that tests which result in statistically discriminatory results are invalid unless they bear a direct relationship to job performance:
At any rate, the city says it was bound by Title VII of the 1964 Civil Rights Act, which requires employers not to rely on hiring or promotional tests that have a "disparate impact" on minorities unless they can show a "business necessity."
So the Constitution requires hiring based on race to achieve statistical balance even in the face of objective tests unless the employer can demonstrate a "business necessity." One can hardly think of an occupation where job performance is more of a "business necessity" than climbing through the fourth story window of a burning building to save grandma.
Clearly, a Fire Department is entitled to rely on tests which result in statistically "disparate impacts" unless the test itself is flawed. This raises the question of the scope of discretion in the employer issuing the test to determine whether it reveals a business necessity. Which is another way of asking, what is the scope of review by the courts? Since this is a civil rights case, all of the discretion and latitude normally given to such an employer or city is very strictly construed and limited. In other words the courts feel quite free to interpose their judgment about what real firefighters should be like because we're dealing with race. The legal question should be, does the test bear a reasonable and rational relationship to its legitimate purpose? If so, the courts inquiry should stop.
So it will all come down to a subjective judgment on the part of Justice Kennedy, just as the Washington Post said.
Justice Kennedy's decision will probably come down to whether he wants equality of opportunity or equality of outcome. This matter stands as yet another reason why I say that all politics in America is not local, but racial.
