What if Ricci Were Not Overturned? Heads I Win, Tails you Lose

What if Ricci Were Not Overturned? Heads I Win, Tails you Lose

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After the SCOTUS ruling in the Ricci firefighter case, I got to thinking.

What if the Supreme Court had ruled in favor of the city of New Haven?

What if Justice Ginsburg had been in the majority and had written an opinion that said that the white firefighters who outperformed the black firefighters could be replaced by the black firefighters just because the City wanted more black firefighters on its force?

The Fantasy

That thought nudged me into fantasy.

What would have been like had I been able to use the Ricci precedent in law school?

My daydream went something like this:

I will agree to take this Constitutional Law test only upon the following conditions:

1. If I pass the test, it is proof that the test is good and the results should be honored.

2. If I fail to pass the test, it is proof that the test is bad and the results should be discarded and the process begun anew with a new test.


But then it dawned on me.

Had a disparate-impact mulligan been available to me when I was a bright-eyed law school matriculant, I don’t think I would have studied for a single exam.

If I knew a priori that my failure to pass an examination would in no part be based on my own lack of effort, that knowledge would have made my studying or not studying moot.

I would have learned nothing.

Application of the Fantasy

Let’s apply the logical absurdity of disparate impact to a few other competitive arenas in modern day America:

The Tennis Match

I play Roger Federer.

If I win, the umpires were fair and I get the trophy.

If I lose, that means the umpires conspired against me and I get to play him again.

Rinse and repeat if necessary.

The Jury Trial

I am an attorney and I represent my client in a jury trial.

If the jury decides in my client’s favor, it is a fair and impartial jury and the verdict stands

If the jury decides against my client, it is a biased and partial jury and the verdict must be set aside.

The Construction Contract Bid

I am a General Contractor and I bid on a state job.

If I get the job, the bidding process was fair and is upheld.

If I don’t get the job, the bidding process was unfair and must be revised.

Crazy, huh?

The Wacky Logic

Here is the contorted and ridiculous logic of “disparate impact” in a nutshell.

The fact that I was not awarded the job is proof that the application process was biased, therefore the process must be altered until it has proven that it is unbiased.

The only way to prove that the process is unbiased is if I get the job.

Even crazier, huh?

The Absurdity of Assuming Across the Board Equality

The problem as I see it is that some people will never accept the idea that, for a variety of reasons, a particular ethnic group on the whole might not perform as well on an exam as another ethnic group.

But the fact alone that a specific ethnic group performed poorly on a test is not evidence of bias, impartiality or any other such abuse-excuse clap trap.

And to suggest that it is does two things, both of them bad:

  1. It teaches the individual who failed to perform well to blame the poor performance on others; and
  2. It forces employers to hire and promote based on quotas.

To illustrate the second effect consider this:

If the paucity of blacks on a particular job is irrebuttable evidence of discrimination, then the only way an employer can prove that he is not discriminating is by having the requisite number of blacks on the job.

That means quotas, people.

Undermining True Self-Esteem

If a person begins with the presumption that the only possible explanation for his failure is that he was cheated, then he is merely giving himself a convenient excuse never to embark on a course of self-improvement.

Why study more? Why work harder? Why even bother to shave in the morning?

I understand that self-esteem is important, but only self-esteem based on effort and accomplishment is worthy of the name.

People can’t be fooled into thinking highly of themselves. Positive self-regard comes from hard work, real sacrifice and substantive accomplishment not from warm and fuzzy bromides.

To tell a person he is fine exactly the way he is and that any mistake, error, poor performance or other apparent flaw in him is mere evidence of a racially biased society that’s hellbent on ensuring his failure, is to paralyze that person.

My God, if I felt that way, I’d never get out of bed in the morning.

About Peter Pappas

Peter is a tax attorney and certified public acccountant with over 20 years experience helping taxpayers resolve their IRS and state tax problems.

He has represented thousands of taxpayers who have been experiencing difficulty dealing with the Internal Revenue Service or State tax officials.

He is a member of the American Association of Attorney-Certified Public Accountants, the Florida Bar Association and The Florida Institute of Certified Public Accountants and is admitted to practice before the United States Tax Court, the United States Supreme Court, U.S. District Courts - Middle District of Florida