June 12, 2009

Standardized Tests, Cultural Bias, and Ricci: How Experience Influenced Sotomayor's Decision

Supreme Court nominee Sonia Sotomayor believes that judge’s personal experience should influence his or her rulings. Her oft-quoted remarks published in Berkley’s La Raza Law Journal in 2001 leave little room for doubt on this account:

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

“Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.”

And the most controversial of all:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”

Democrats were quick to rise to the judge’s defense once the quotes reached the public ear. Perhaps she only meant that her experiences as a Latina would add to the diverse perspectives on the Court, suggested Senator Arlen Specter. Or maybe she didn’t mean it literally, argued Senator Dianne Feinstein. The quote was surely taken out of context, added Senator Chuck Schumer.

Of course, the fact that she echoed the same sentiments numerous times in public appearances throughout her career has cast considerable doubt on these excuses. Yet prior to the recent video release, only speculative inferences could be drawn about how she applied those “rich experiences” to her practice as a judge.

Now, however, there is further evidence to suggest that Sotomayor’s personal biases contributed directly to her ruling in the case of Ricci v. DeStefano.

The case, as most will recall, involves an exam that was administered to New Haven, Connecticut firefighters in order to select candidates for promotion, but was discarded when no black firefighters managed to score high enough to qualify for consideration. Seventeen of the firefighters who qualified for promotion, led by Frank Ricci, sued the city on grounds of discrimination, but the three-judge panel that included Sonia Sotomayor ruled against them.

Given that President Obama has praised her for having that crucial empathy factor necessary for an effective Supreme Court justice, combined with Sotomayor’s own emphasis on her Latin heritage, one could reasonably (though not conclusively) surmise that her empathy for minorities played a role in her decision on the Ricci case.

But recently revealed statements by the judge suggest a more concrete basis for her lack of impartiality:

“With my academic achievement in high school, I was accepted rather readily at Princeton and equally as fast at Yale, but my test scores were not comparable to that of my classmates. And that’s been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action to try to balance out those effects.”

Here we have Sotomayor admitting that she not only benefited directly from affirmative action, but that she believes standardized tests are implicitly biased. Thus, the fact that not a single black firefighter scored high enough on the New Haven test (although one Hispanic managed to pass) in all likelihood convinced her that this test was biased as well. Frank Ricci and his fellow petitioners never stood a chance.

And she came to this conclusion despite the city’s intentional efforts to ensure the test was free of potential sources of bias by hiring a consultant to design the exam with this specific goal in mind.

Defenders of Sotomayor might object to this interpretation by contending that we cannot possibly know what she was thinking when she ruled against Ricci. If we were discussing a judge who was dedicated to putting the rule of law ahead of personal bias, they would have a legitimate point. But Sotomayor's experience with "culturally biased" testing, coupled with her history of remarks upholding a judge's use of personal experience to guide his or her reasoning on the bench, makes it difficult to conclude she was not unduly influenced by her personal views on the matter.

UPDATE: An interesting article from the LA Times on a Puerto Rican Legal Defense and Education Fund (PRLDEF) suit filed in a case similar to Ricci when Sotomayor sat on the organization's board in 1984.