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Commentary: New Haven's test was flawed - why is it wrong to recognize that?

This article first appeared in the St. Louis Beacon, July 1, 2009 - The Ricci v. DeStefano decision is as much about psychometrics as it is about race. However, the sexy headlines will hail a victory for reverse discrimination. We as a country are inherently defensive about race and eager to move beyond it quick to claim that, with a Black president, we have achieved King's dream. I fear that the complexities, or perhaps the heart, of this case will be lost in the emotions.

This case hinged on the city choosing to throw out a test. We often reify tests in our society without fully understanding what goes into them. Our adoration and respect is understandable, because we grow up taking tests and use them as markers of success. From spelling tests to SATs, we are addicted to tests.

We need to understand a few basic qualities of a test, which we often take for granted. Tests need to be valid and reliable. Furthermore, in the world of employment, tests are most helpful when they have a cut-off and/or can rank candidates in an order to aid with decision-making.

Reliability simply means that a person will score similarly over time. Validity refers to a test measuring what it is supposed to measure. For example, if we want to test individuals' ability to read a map, we would ask about their knowledge of directions and other related constructs rather than asking about their mastery of sports or politics. That seems obvious, right? Well, it is not so simple. Psychologists spend entire careers constructing and perfecting tests so that they are valid indicators of what they intend to measure. All of these test properties are collectively referred to as psychometrics.

The test in question lacked validity, a cut-off and the ability to rank order. Some of the flaws with the New Haven exam are cited in thedissenting opinion . With the test, a difference of several points was not statistically significant enough to be used in promotion decisions. It also did not differentiate between qualified and unqualified candidates. Previous promotional exams have been invalidated because of these shortcomings.

What good is a test that neither helps you rank candidates for promotion nor provides meaningful information about who is qualified or not? Not much, which is why the test was considered a poor instrument.

I would argue, as do the dissenting justices, that the flaws in the test were substantial and that, therefore, race being possibly one of the many factors in the decision to throw it out does not make that act discriminatory.

The majority opinion seems based on the belief that by avoiding disparate impact - creating different results on the basis of race - the city was, in fact, engaging in discrimination. It seems flawed to say that removing something that could be discriminatory to one group is inherently discriminatory to another. If the city had been allowed to put in place a process that was psychometrically sound and fair based on race it could have possibly promoted all of the petitioners in this case. Would the act of removing the flawed test still be seen as discriminatory? My guess would be no; and in addition, the city would be protected against disparate impact lawsuits.

In his concurring opinion, Justice Antonin Scalia makes clear that he believes any mention of race in the law is problematic and speaks of a war between disparate impact and equal protection. I would argue that rather than a war between these two concepts, we have to be willing to navigate the thorny reality of why they exist.

Ideally, as a country, we claim equal protection under the law. However, in deed, our legal system has over time aided in constructing a society in which this concept is not realized. It would be anachronistic to hold these two concepts up as equal without acknowledging context. I refer back to Stanley Fish's analogy of cancer and chemotherapy : We continue to use chemotherapy despite negative side effects, because we are able to put things in context.

My worry is that this ruling will paralyze those trying to recognize and rectify racial disparities. Rather than moving forward and continuing to remove biases, they might maintain the status quo for fear of being implicated. Yet, with what we know about the flaws that exist in tests, especially in this case, it is false to continue to use these tools and claim equality.

Kira Hudson Banks, PhD., is assistant professor of psychology at Illinois Wesleyan University in Bloomington. The native of Edwardsville is a regular contributor to the Beacon.