- The Washington Times - Friday, January 22, 2010


Far from being a “post-racial” presidency, the Obama administration continues to pick the scab of racial discord. The prime culprit is the heavily politicized Civil Rights Division of the Department of Justice, which under the Obama team won’t act to protect the civil rights of white Americans but insists on finding white racism where it doesn’t exist.

Ignoring statutory language and recent Supreme Court decisions, the Justice Department filed suit Jan. 7 to force New Jersey to stop using its long-standing written exam to screen candidates for promotion to police sergeant. The suit effectively accuses New Jersey of not producing the right quota of black and Hispanic sergeants.

The Justice Department alleges a discriminatory effect - what is known in legalese as a “disparate impact” or “adverse impact” - because 89 percent of whites passed the screening exam from 2000 to 2008, while “only” 77 percent of Hispanic candidates and 73 percent of black police made the grade. This relatively slim difference in passage rates doesn’t even meet the official legal standards for triggering a discrimination complaint.

The Department of Labor promulgates what is known as the four-fifths rule, which states that “a greater than four-fifths [selection] rate [compared to ‘the rate for the group with the highest rate’] will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.” New Jersey meets that standard. Moreover, in Ricci v. DeStefano last year, the Supreme Court ruled in favor of white Connecticut firefighters who were denied promotions they had earned through a fair exam. In that case, the high court was clear: It rejected anything approaching “a de facto quota system” and said the law “is express in disclaiming any interpretation of its requirements as calling for outright racial balancing.”

The U.S. Code explicitly allows for disparate impacts of almost any size if the criteria used for promotion are not discriminatory in intent and are “job related for the position in question and consistent with business necessity.” Other case law makes clear that, as one text puts it, “the job in question has a direct impact on public safety.” In the New Jersey cop case, the Justice Department made no effort to show evidence that the exam was unrelated to the job. Clearly, the test is designed to be both job-related and safety-related. NorthJersey.com paraphrases a Newark Police Department spokesman to the effect that “the approximately four-hour test covers traffic and criminal laws, as well as state guidelines.”

If a police test covering traffic and criminal laws isn’t both job- and safety-related, nothing is. And if about three-quarters of minority candidates pass the test, it’s nonsense to assert it is discriminatory in effect, much less in intent. Yet the Obama Justice Department seems intent, in this case and in a series of others, on eliminating written exams for public-safety officers.

The Justice Department is way out of line. Most Americans understand that public-safety officers need to know the law. Objective tests are necessary to determine that they do, and mild statistical disparities should not invalidate such important examinations. When an administration’s racial bean-counting threatens to stand in the way of public safety, the public won’t see black and white - only red.



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