SCOTUS has just handed down a decision on race relations which left the court divided 5 - 4.

Ricci v DeStefano arose as a result of the promotion procedures for firefighters in New Haven, Connecticut. In late 2003, the New Haven Fire Department required that applicants for promotion to Lieutenant and Captain undertake written and oral exams. Promotions were infrequent, and the stakes were high. Apparently, the exams were very carefully designed so that they would not favour one particular racial group over another. After the exams, the New Haven Civil Service Board (CSB) was to certify a ranked list of applicants who passed the test. Under the New Haven City Charter’s “rule of three,” the relevant hiring authority was required to fill each vacancy by choosing one candidate from the top three scorers on the list.

The difficulty arose when the results of the test were released (as related at pages 5 and 6 of majority judgment):

Seventy-seven candidates completed the lieutenant examination — 43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed — 25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white.  Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination — 25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed — 16 whites, 3 blacks, and 3 Hispanics. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain — 7 whites and 2 Hispanics.

For the 118 firemen who took the exams, the pass rate for black candidates was approximately half that of the corresponding rate for white candidates. At page 2 of his judgment, Kennedy J notes:

When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded.

The CSB was required by the Charter to vote to certify the test results. The CSB held five hearings in early 2004 to deliberate whether to to certify the test results, as it was alleged that the results had a disparate effect on racial minorities.

Title VII of the Civil Rights Act 1964 (codified as Subchapter VI of Chapter 21 of 42 U.S.C. § 2000e), prohibits employers from discriminating against employees on the basis of race, colour, religion, sex or national origin. See 42 U.S.C. § 2000e-2 (a), which states that employers must not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” or “limit, segregate or classify his employees or applicants for employment in any way” which might discriminate against a particular group. It seeks not only to prohibit direct discrimination (”disparate treatment”), but also unintentional discrimination, where a particular practice has a “disparate impact” on a particular group. 42 U.S.C. § 2000e-2 (k) outlines when a practice has “disparate impact” on a particular group. If an employer demonstrates that the practice is “job related for the position in question and consistent with business necessity”, then it is permissible to have a disparate impact on a particular group.

In the event, the test results were not certified. The City was worried that the test was racially discriminatory and would open them up to legal action by disaffected minority groups.

The plaintiff Ricci and 17 other test takers (of whom 16 were white and one was Hispanic) sued the City. They argued that the City had contravened Part VII because it had engaged in disparate treatment of white applicants. All of the plaintiffs would have qualified for consideration for promotion. Ricci’s story was a particularly poignant one:

Frank Ricci has been a firefighter here for 11 years, and he would do just about anything to advance to lieutenant.

The last time the city offered a promotional exam, he said in a sworn statement, he gave up a second job and studied up to 13 hours a day. Mr. Ricci, who is dyslexic, paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He made flashcards, took practice tests, worked with a study group and participated in mock interviews.

Mr. Ricci did well, he said, coming in sixth among the 77 candidates who took the exam. But the city threw out the test, because none of the 19 African-American firefighters who took it qualified for promotion.

At first instance, a single judge granted the City’s application for summary judgment. The plaintiffs appealed to the Second Circuit Court of Appeals, which initially merely confirmed the summary judgment, but then issued a short per curiam judgment, so short that it can be quoted here in full:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

Significantly, one of the Second Circuit justices was Sotomayor J, now appointed to SCOTUS. This means that her questions of the parties in the Ricci case have been now been scrutinised with a fine-toothed comb.

The plaintiffs then appealed to the SCOTUS. A majority of the Court found in favour of the plaintiffs. Kennedy J delivered the majority judgment (with which Alito and Scalia JJ and Thomas CJ concurred). It can be summarised as follows:

• Contrary to the findings below, the City did engage in disparate treatment when it failed to certify the test results. It decided that too many white people had passed the test and not enough racial minorities had passed it, which was intentional discrimination against a particular group.
• However, sometimes avoiding unintentional discrimination can justify intentional discrimination.
• The plaintiffs’ position was that an employer must know that it is in violation of the disparate impact provision before engaging in disparate treatment. The defendants’ position was that an employer must merely believe in good-faith belief that disparate treatment was necessary. Neither extreme was correct.
• The correct test was that an employer could engage in disparate treatment when there was a “strong basis in evidence” of disparate impact.
• Given that there was disparate treatment in this case, the question was whether the City had a “strong basis in evidence” of disparate impact. The City did not have a “strong basis in evidence”. All it had was prima facie statistical results which suggested that black and Hispanic candidates were half as likely to pass as white candidates. The tests were job related and consistent with business necessity. The authors of the test conducted painstaking tests to ensure that the test did not unduly disadvantage minorities. The majority also found that there was no evidence of equally valid, less-discriminatory alternative exam.

Scalia J concurred fully with the majority, but also addressed the question of whether the disparate-impact provisions were consistent with the US Constitution’s guarantee of equal protection. Scalia J said at pages 1 - 2 of his judgment:

But if the Federal Government is prohibited from discriminating on the basis of race…then surely it is also prohibited from enacting laws mandating that third parties — e.g., employers, whether private, State, or municipal — discriminate on the basis of race. …Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.

Alito J also fully concurred with the majority, but brought up the question of the extent to which the CSB’s decision was made because the New Haven mayor did not want to upset a black prominent supporter. His statement of facts was brought into question by Ginsburg J’s dissenting judgment.

Ginsberg J (with whom Stevens, Breyer and Souter JJ concurred) wrote the dissenting judgment. She noted the long history of underrepresentation of ethnic minorities in the New Haven firefighting force. She criticised the New Haven Fire Department for not administering a less discriminatory test.

Her Honour did not see the two provisions preventing “disparate treatment” and “disparate impact” as being in conflict. She said at page 19 of her judgment:

A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.

She found that the failure to certify the exam results was not disparate treatment because the CSB had good cause to believe that the exam was discriminatory by reason of its disparate impact; nor would the exam pass the strict requirements of the business necessity test.

A difficult case. At the end of it all, I can still hear those crabs scrabbling in the bucket.

Councillors in Glasgow have lifted an unofficial 30-year-old ban on the Monty Python film The Life of Brian. The council’s licensing and regulatory committee approved a request on Tuesday from Glasgow Film Theatre to show the biblical satire under a 15 certificate.

Glasgow was one of 39 local authorities in the UK that refused to grant the film a general release in 1979. Opponents said the film, about a Jewish man who is mistaken for the Messiah and crucified, was blasphemous.

Councillor Willie O’Rourke, vice convener of the licensing and regulatory committee, said: “This is the first application we’ve received to show Monty Python’s Life of Brian since the first request.”

“Life of Brian has been broadcast on television over the years and is now widely available on DVD. The world, and people’s attitudes, have moved on in the last 30 years, so I believe the committee made the right decision today.”

- BBC News

Looks like it’s true what they say…

So obviously, I’ve known of Michael Jackson for a long time. Yes, he was an incredible dancer and a talented musician. And yes, I feel sad and shocked that he died at only 50. But his death didn’t have the personal resonance for me which it seems to have had for many - the people pictured crying in the streets.

I’ve said before that I don’t really understand the public outpouring of grief for dead celebrities. Certainly, I had crushes on characters in books or movies (mentioned in detail, as I recall, in the speech at my 21st birthday, with the requisite blush-inducing effect).  But I have never felt a personal connection with a celebrity. I suspect I’m unusual in this. I never even had posters of actors, bands or singers up in my room.

There are two issues I want to explore in this post:

1. The utter hypocrisy of the press with regard to celebrities; and
2. The phenomenon of “conspicuous compassion”.

The hypocrisy of the press

“Hypocrisy is the homage vice pays to virtue.”

(Francois de La Rochefoucauld)

First, I was horrified to read some of the schmaltz about Jackson in the press over the last few days. While the man was still breathing, they were happy to hound him and ridicule him. Now he’s dead, suddenly he’s a saint, and his absence will be a great gaping hole in our lives. The hypocrisy of it is breathtaking.

Just like Princess Di, Jackson himself was not entirely blameless, as he had originally propagated some of the rumours which surrounded him. And like Princess Di, I always saw Jackson as a flawed figure, to be pitied rather than admired. In interviews, he comes across as a lonely, damaged and utterly self-obsessed person. The poor man did not have a normal childhood or a chance to develop normal interactions with other people. He was a puer aeternus, desperately trying to recapture his lost boyhood, and more comfortable around children than adults. He even called his ranch “Neverland” in a nod to Peter Pan. And clearly, he loathed his own body and appearance. The problem was - the more he tried to “improve” his appearance, the worse he looked, in my opinion. The plastic surgeons who let him do that to his face were negligent.

But let’s not kid ourselves - the press loved those flaws, and wanted to prise open the cracks further. They slavered over stories of “Whacko Jacko’s” bizarre behaviour, and positively worked themselves into a frenzy when there were allegations that Jackson was a child molester. They loved the thought that Jackson’s nose might be about to collapse, or that he endangered his third child by dangling him over a balcony. The whackier his antics, the better.

So to see the press crying crocodile tears over Jackson’s death is repellent. The cynic in me suspects that if there’s any genuine crying, it’s on account of the fact they won’t be able to run any more stories about Jacko’s antics.

Conspicuous compassion

And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

(Matthew 6:5 - 6, KJV)

The other thing which Jackson’s death has brought to the fore is the phenomenon which has been called “conspicuous compassion“. Patrick West wrote a book exploring this phenomenon in 2004, in which he argued:

This book’s thesis is that such displays of empathy [such as buying flowers for a deceased celebrity] do not change the world for the better: they do not help the poor, diseased, dispossessed or bereaved. Our culture of ostentatious caring concerns, rather, projecting one’s ego, and informing others what a deeply caring individual you are. It is about feeling good, not doing good, and illustrates not how altruistic we have become, but how selfish.

I’m not quite as harsh as West is. But I would observe that, paradoxically, it seems people are more comfortable with expressions of grief about the death of a celebrity than they are about the death of a loved one.

I can’t help thinking of a discussion I had with a friend whose mother died about 10 years ago. Apparently I had said something that really reminded my friend of her mother, and she laughed with pleasure. I had never met her mother; she had died before I knew my friend. We then talked about some other funny things her mother had done. “I like talking about Mum,” said my friend, “She was a great person.” She said it had been really difficult once the initial grief had receded, because she had wanted to talk about her mother and her feeling of loss, but no one knew what to say, so they just avoided the topic entirely.

The conspicuous display of grief in the wake of the death of a celebrity is an odd phenomenon. In some ways, I think people feel more comfortable with displaying grief in those circumstances precisely because they didn’t really know the person who died. Perhaps, for some, the death of a celebrity is a proxy allowing them to express grief about other losses, and to breach the subject of their own bereavement with friends. Perhaps there are positive aspects. But I cannot help feeling that the whole thing is bizarre.

When Princess Di died, I went into the City, and had to step over piles of flowers outside St Paul’s Cathedral to meet my friend at Flinders Street. The messages on the flowers were variations on a theme: “I loved you so much Diana, what will we do without you?” Reality check, please. Unless you were a close friend or family member of Princess Diana, I suspect you went on very much as you did before. Of course it’s sad, but it’s not comparable to the distress of losing a person whom you genuinely loved and knew. At the time, there was a real sense that if you didn’t share in this bathetic mourning, you were somehow heartless or nasty.

Conclusion

How do the two points I raise link together? I think we have a sense that we really know celebrities - almost a sense that we own them. And songs are potent stuff indeed: songs which had importance in a particular time in our lives make us feel like we know the person who wrote and performed them.

But let us be under no illusions - this sense that we know celebrities is false. It is manufactured by the media, for their own purposes - primarily, of course to make money. They make money because most of us are fascinated by the stories they print or show.

Of course we can feel sorrow for the death of someone like Jackson, but it’s as well to remember that we didn’t actually know him or own him. At least now hopefully he’s at peace.

Update:

This piece has been cross-posted at Online Opinion on 1/7/2009. Have a look, there’s some interesting comments there.

A pastor in the US state of Kentucky told his flock to bring handguns to church in what he said was an effort to promote safe gun ownership.

Pastor Ken Pagano told parishioners to bring their unloaded guns to New Bethel Church in Louisville for a service celebrating the right to bear arms. He said he acted after church members voiced fears the Obama administration could tighten gun control laws.

When the service began, some 200 people were present, AP news agency said. “We are wanting to send a message that there are legal, civil, intelligent and law-abiding citizens who also own guns,” Mr Pagano told the congregation. “If it were not for a deep-seated belief in the right to bear arms, this country would not be here today,” he said.

The pastor also held a handgun raffle, as well as providing information on gun safety.

- BBC News

And if it were not for a deep-seated belief in the right to bear arms combined in a toxic mix with religious chauvinism , Dr George Tiller would be here today.

Memo to Pastor Pagano: being religious and/or attending church is not in itself proof that you are a “legal, civil, intelligent and law-abiding citizen”, as Scott Roeder so eloquently proved.

Perhaps it’s in all our interests that the Transformers franchise is proving harder to kill. This is in part because the original series was so impressive, but also because Transformers nuts Linkin Park did the soundtrack to both of Bay’s efforts. I’ve excerpted Linkin Park’s efforts for the second film below. It’s excellent, as you’d expect, and I’ve already written Linkin Park frontman Chester Bennington a bit part (based on his role in Crank) in the novel I’m working on now. He works very well as the utterly dissolute apothecary who sells drugs in his pharmacy all the while explaining Friedmanite drug laws (taxed and profitable) to the provincials…

What’s in a name? that which we call a rose
By any other name would smell as sweet…

(Shakespeare’s Romeo and Juliet, 1594)

Or not. I remember when a friend’s husband was employed by a large telco, he was asked to change his Islamic sounding name to “Michael” when taking calls from customers. Being a very easy-going fellow, he demurred, although his wife and I were scandalised that such a thing was even suggested.

The other day, a study was released which suggested that job seekers with “ethnic” names generally got less response to their applications than those with Anglo names. (Unless they were someone with an Italian name in Melbourne applying for a job as a waiter/waitress.)

This doesn’t really surprise me. I’ve known people who have had to change their name for CVs before.

Theodora Brown has an interesting post on the topic. Her point of view is as an Australian woman of Chinese extraction. She says:

I was surprised though, at the automatic assumption in the press and in discussion that the  the adoption of names was simply for the benefit of the exclusively Anglophone.  Particularly in a multicultural society, the adoption of an anglicised name is, these days, I think more for the assistance of  benefit of non-English speakers rather than English speakers.   A case of English being the lingua franca, so to speak, for the very many disparate groups who now call Australia home.

There’s a place for pride in one’s heritage, one’s background, one’s past, one’s principles.

And there is a case of just being practical.

I have to say that I hadn’t thought of it like that. Worth having a read.

MPs in the running to succeed Michael Martin as House of Commons Speaker on Monday have come under scrutiny in more allegations over expenses claims. Details of tax-funded expenses have been published in The Sunday Telegraph. The paper says Labour’s Margaret Beckett claimed more than £11,000 for gardening and Tory MP John Bercow twice claimed for help with a tax return.

Mr Martin became the first Speaker to be forced from office in 300 years when he stood down last month. MPs are due to choose his replacement on Monday…

Justice secretary Jack Straw told BBC One’s Andrew Marr Show that the new Speaker would have to restore public trust in Parliament. He said: “We’ve got put partisan interests aside and elect a Speaker who is best placed to lead the House of Commons to a restored position of authority and trust.” Mr Straw added that the amount of information about MPs’ expenses which had been blacked out when they were released on Thursday had left a “terrible impression”.

Lib Dem leader Nick Clegg called for a “people’s Speaker” who would open up Parliament for the 21st century, but warned that whoever landed the job faced a tough task. He said: “Even if we get the best speaker in the world, he or she is really going to have their work cut out. The vested interests at Westminster are already manoevering to water down reform.”

- BBC News

The trouble with putting yourself forward for consideration as the next Speaker of the House of Commons is that unless you’re already whiter than white expenses-wise, it smacks of a last ditch attempt to fill your boots AND save your seat before the next general election.

Michael Martin was the first speaker to be removed from the job in 300 years. Traditionally the £140,000+ a year post is a permanent appointment until you retire, aided by a gentleman’s agreement that other parties won’t field a competing candidate in your constituency (thus guaranteeing your re-election in perpetuity). The all time record of thirty-one years is still held by Arthur Onslow, the “great speaker” from 1728 to 1761.

At the moment the only “clean” MP with any kind of public profile seems to be LibDem Treasury Spokesman Vincent Cable. The former economist has spent most of the last six months as the media’s poster boy for financial probity and would be a popular public choice, but he has refused to join a Labour Government. (He’s probably not the ONLY honest politician in the Commons, but you’d be hard-pressed finding enough of them to make up a bridge party just at the moment).

A Speaker doesn’t have to come from the party of government - strictly speaking he or she is the only really independent MP in the place with responsibility for parliamentary administration rather than national government - but most governments find it ‘convenient’ to have a party loyalist in the chair.

In the current political climate, it would take some very fast and smooth talking to convince the public that the election of another staunch Labourite wouldn’t constitute yet another petty corruption of the institution.

UPDATE: 22 June 2009

Conservative backbencher John Bercow has won the race to become the 157th Commons Speaker. The Buckingham MP received 322 votes to his rival and fellow Conservative MP Sir George Young’s 271.

In Bercow, we seem to have been given the best of both worlds. A Tory MP, generally considered “most-likely to defect to Labour” by his party.

The main thing in life that makes me proud is family: my children, my husband, my sister, my parents, my extended family and in-laws. I also love to see other people achieve their best, whether they are family, friends or students.

Personally, I get much joy and pride from my art, cooking a good meal for my family, writing a good blog post and solving a really hard cryptic crossword. As far as academic acheivement goes, unfortunately I suffer from “Imposter Syndrome” - I wish I could feel proud, but I am plagued by a constant suspicion that I am an imposter. Most vexing. Every now and again I get an idea where I think, yes, that really was a good one!

It’s interesting to consider what I would have put in this post if I had been writing it 10 years ago. At that time, I certainly would not have envisaged that I would be a wife and a mother of two. I suspect I would have listed academic achievements as the main personal achievements of which I was proud. I doubt I would have even contemplated the possibility that being a mother is my proudest achievement.

I have been thinking lately of how society undervalues parenting as an achievement. And, almost as if on cue, a furore has arisen in the Federal Senate after Greens senator Sarah Hanson-Young brought her two-year-old daughter Kora into the chamber. There is no suggestion that her daughter was distracting others or in some way impeding Hanson from doing her job. She was just sitting quietly on her mother’s lap. However, Senate President John Hogg ordered Kora out of the chamber because technically, she was a “stranger in the house”. Apparently babies are not strangers while they are breastfed, after the rules were changed when Victorian MP Kirstie Marshall was ordered out of the state Parliament for breastfeeding her daughter. But once they are weaned they technically become strangers. President Hogg has regretted the way in which the matter was handled, and welcomes a reassessment of the rules so that they are clearer.

Reactions were mixed. Some MPs supported Hanson-Young, whereas Barnaby Joyce suggested it was a stunt (hat tip: LP). The Age had a range of responses from readers and commentators. Andrew Bartlett’s opinion is worth reading on the issue.

Poor Hanson-Young said:

“I was upset by what happened. In fact I don’t think I’ve ever felt so humiliated in my life. … I understand that the president made a ruling based on the current rules. But as any mother knows, sometimes families don’t play by the rule book… I hope this allows us to have a discussion about how we balance these things and respect the work of working families regardless of whether it’s mothers or fathers…”

Given Hanson-Young’s evident distress, insinuations that the whole thing was a stunt are unpleasant.

Is this just an issue for mothers? No, it is not. Is the attitude towards mothering (and parenting generally) sexist, a function of our patriarchal society, which privileges non-parenting activities?

I’d suggest the reality is a little more complex than this. One only has to think of Betty Friedan’s The Feminist Mystique, which questions the notion that women only find fulfilment through childbearing and homemaking. Let me be clear: this is a good thing to question. Not all women want to have children, not all women who have children want to be homemakers.

However, this questioning of fulfilment via childbearing and homemaking has led some people to believe that a woman who does find fulfilment through childbearing and homemaking is somehow deluded. What is more, it has led to an environment where it’s difficult to say that you enjoy staying home with your children. And men who choose to stay home and look after their children suffer these kind of judgments even more acutely.

I’m sure I’ve written before of the conversation I had with a female boss after I gave birth to my daughter. She rang up to check when I was returning from maternity leave. My daughter was 3 months old at the time. I said that I wasn’t quite ready to come back to work, and that I had at least another 6 months at least up my sleeve. This woman said something to the effect that I should just put my daughter in care and come back to work, because “these are the sacrifices women have to make if they want to get ahead as a solicitor.” I handed in my resignation the next day.

Now, you might think - perhaps this woman didn’t have children? Perhaps she didn’t realise how hard it is to leave your child? Well, you would be wrong. She had two children under the age of 5. Why is it that women are sometimes their own worst enemies? This conversation really disappointed me, because, naively, I had thought this woman was an ally and a friend. My theory is that women like this try to get other women to follow their own choices because it vindicates their own choice. I suspect, somewhere inside, this woman might feel guilty that she doesn’t spend much time with her children, and seeing someone else choose differently makes her realise this. I genuinely don’t mind what this woman chooses to do. I don’t judge her, or try to bully her to make the same choices as me. So I’d appreciate it if women such as this would respect my choice.

Now, I genuinely enjoy my work and study. I would not want to go back to a world where the only options available to me were childbearing and homemaking. But the difficulty for me (as for so many parents out there) is getting a balance (as I’ve discussed before).

I don’t know quite how this post turned from a discussion of pride into a discussion of parenting, feminism and society. I suppose it was just the realisation that in my youth, I wouldn’t have expected that I would feel this way. Secretly and inwardly, I might even have sneered just a little at women who said they found fulfilment in this way. But to feel pride in one’s family is important and natural. That is why Hanson-Young felt humiliated when her daughter was ordered out of the chamber - because she is proud of her daughter, and proud of balancing the demands of work and family, but the public ejection of her child was a repudiation of that.

Hopefully, the Hanson-Young incident will start a discussion of what we can do to make sure that parents can balance these things more easily.