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Notes -
"If the court accepts that, than the court is a ass — a idiot."¹
The Wonderlic test was first written in 1939; Duke Power Co. only adopted it as a requirement on the same day they could no longer legally discriminate directly on the basis of race.
The case should have fallen under the doctrine of noli meiere in cruro et dicere pluviam.
¹Charles Dickens, Oliver Twist.
...So on the day the law said they could no longer screen by race, they stopped screening by race and started screening by IQ test. And this proves to you that they were still screening by race, because they... complied with the law to stop discriminating by race?
What screening method should they have switched to, in your view?
The fact that they explicitly discriminated by race as long as they could legally do so indicates mens rea; that they sought to exclude Black Americans for being Black Americans.
The same method they used to screen white people prior to the Civil Rights Act.
@The_Nybbler:
That would have been somewhere in the vicinity of a plausible conclusion if, sometime between 1939 and 1964, Duke Power Co. had started requiring an IQ test for all applicants and stopped considering their race. The fact that they made the change not when the Wonderlic test was introduced, not when overt racial discrimination was becoming frowned upon, not when the Civil Rights Act passed Congress, but at the very last moment they thought they could get away with, points toward the grown-up equivalent of hovering one's finger 5 mm from someone's face while saying "I'm not touching you! I'm not touching you!".
In law it should probably actually matter if they're touching you.
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No, mens rea does not work that way. That you were doing something now-illegal before it was illegal is not an element of any future offense. In any case, it does not matter; the reasoning of the decision was based on the judges' conclusion that they were not, in fact, intentionally discriminating. Griggs found that disparate impact was illegal in itself, not because it was evidence of disparate intent.
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"They explicitly discriminated by race as long as they could legally" applies to anything they did after the ruling as well.
So any other method of screening that someone might want to try out is outlawed?
From 1939 (when the Wonderlic test was introduced) to 1964 (Civil Rights Act), they had the choice of (1.) whether or not to consider race and (2.) whether or not to consider (measured) intelligence. During that period, they chose to open doors for white people, no test required, but close them to black people, no matter how intelligent. This is evidence establishing motive; that their goal was to keep black people at the bottom of the socio-economic ladder.
Prior to the Civil Rights Act, Duke Power Co. did not use any screening method if the applicant was white; if they had had such a testing requirement prior to 1964, that would have been evidence that they were being honest about their motivations, and would have been justified in using a different instrument (unless they switched from a test that a random black person was half as likely to pass to one he was a hundredth as likely to pass). The fact that they felt no need to require any kind of test until they had to consider black people indicates that having any method of screening was a transparent attempt to weasel out of extending to Black Americans the same opportunities which had previously been reserved to the more melanin-lacking segments of the population.
There’s something you’re missing here. The social scientist and psychologist J. Philippe Rushton, who wrote (controversially) about race differences in intelligence and psychology, noticed an interesting phenomenon. He was discussing the large differences in average measured national IQ, and a student asked him how, if the average IQ of some African countries is in the low 70s (below the threshold under which a person is considered mentally retarded in the United States), those countries are able to sustain basic infrastructure and to maintain a semblance of functionality. They’re not thriving by First World standards, but the average citizen of one of those countries is able to adequately carry out day-to-day adult responsibilities, to hold down a job, to attend to children, etc. It’s not what you would expect from a society populated by the kids you see eating glue in American special education classes, to say the least. So, what is the IQ test failing to capture?
Now, of course, one can simply question the validity of the IQ test in question, assume that the average IQ of those countries is in fact considerably higher than measured, and obviate the whole discussion. (And, in fairness, many have pointed out flaws in Rushton’s work, such that it’s plausible that some of his data may have relied on questionable extrapolation from limited data.) However, let’s assume for a moment that the data we have on average IQ differences between groups is at least relatively reliable — and I do believe this is the case, given how consistent the broad patterns in measured data have been since IQ tests first began being administered.
We observe that white children in the U.S. who have an IQ of 72 are profoundly disabled; even besides their very low IQ, there are usually other things about them which mark them as clearly non-functioning. (Physical deformities, social ineptitude, etc.) Without having any access to IQ test results, it would still be easy for you to identify such a person as a poor candidate for an open job position at your company.
However, the black kids who get assigned to special education classes due to their poor IQ test results tend to be very observably different. They are far more socially competent than their white peers in those classes. They show no physical manifestations of disability, and they’re often indistinguishable from “normal” kids in conversation, except in academic settings or when trying to deal with complex intellectual tasks. If you met one of these people as an adult, it might be very difficult to clock him or her as intellectually deficient; this person could carry on a normal conversation, could be charming, could drive himself or herself to the job interview dressed like a normal person, etc. It’s only by specifically administering a test of cognitive aptitude that you would discover that this person is not going to be able to intellectually comprehend the tasks and concepts which will be required for the job. They “pass” as normal unless you use the test to ferret them out.
So, given this phenomenon, it makes sense that Duke Power opted to use an IQ test when hiring black applicants. With a white applicant, you can usually figure out in the interview whether the individual is too dumb to be able to do the job. With a black applicant, you need some extra information to help you make an informed hiring decision.
That might mean that the IQ test is failing to capture some element of intelligence. If someone can drive, be charming, carry on conversations and so on with a measured IQ of 72 and some other person with the same IQ cannot, then it is reasonable to wonder if the IQ test itself is flawed. Those people should not have the same scores if it is actually measuring general intelligence. If someone can learn to drive which is a complex skill requiring hand-eye coordination, spatial analysis and lots of other things, the chances are their real g is not 72. If they can keep track of conversation topics, be charming, to the extent that you can't tell their IQ is 72, then probably their real g is not 72.
The first person will regardless of their IQ be able to carry out a good chunk of jobs (because being able to drive, talk to people, be charming and the like describes all that is required for a good number of jobs), the second will not. If your test is excluding both, that is likely to be an actual issue. That it happens to break down on racial lines that were previously discriminated upon is then suspicious.
"Yes we used to discriminate, now we just happen to be using this test that says you have the same IQ as someone with an intellectual disability, even though you do not act in anyway the same and have capabilities they do not, and sorry bad luck that means we can't employ you just like we didn't want to before, but we promise we are on the up and up this time."
It shouldn't really be a surprise if the affected people don't really believe you. The fact you can be telling the truth but the test itself is perhaps flawed is just the cherry on top.
It’s absolutely true that one of the people I’m talking about could function extremely well in any number of jobs which just require one to be amiable and to perform basic tasks. Such a person would not be able to perform the job tasks required of an employee of an energy company, where even minor screwups can have catastrophic effects on an entire region. Like, if Wendy’s was demanding a Wonderlic test, I would think that’s a bit excessive. If the company that runs the power grid for an entire region demands it, that strikes me as a reasonable failsafe. Do you want the company responsible for your electrical power to hire individuals who can charm an interviewer, but who can’t do basic mental arithmetic, who can’t reason through rudimentary logical scenarios, and who is incapable of any outside-the-box thinking?
I agree with you that a test which assigns the same IQ score to a glue-eating retard and a more-or-less functional person is failing to capture the whole picture. However, it’s still capturing an extremely important part of the picture when we’re talking about jobs requiring considerable cognitive labor.
Well it depends on the job right? They are going to have janitors and office managers and truck drivers and sales reps and the like. If they have the test for all jobs then it is a problem, because not all jobs do require that level of thought even in a power company.
Regardless of that again, if you use a test which "assigns the same IQ score to a glue-eating retard and a more-or-less functional person" and that test also happens to misdiagnose mainly black people into the glue eater category AND you have been previously refusing to employ black people, then there isn't much reason for people to believe you when you say that actually it really does correctly weed out people who can't design power plants. They are going to see that it weeds out the people you were previously choosing to weed out and that it appears to be wrong in at least some regard. You defense of "Yes we know it is wrong, but it still weeds out who we want" is going to pattern match to exactly what you were doing before, only more sneakily. You don't have enough credibility to convince them you will use an admittedly flawed test correctly.
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This makes no sense. When they were told to stop discriminating, they changed their screening method into one that doesn't consider race at all, why should I assume that actually their motivation was to discriminate, just because the criteria are different than what they used to apply to white people?
So if I look them up now and it turns out they have some degree requirements, it must mean the goal of introducing them must have been racism, correct?
That does not follow at all. If your usual pool of applicants overwhelmingly have an aptitude level that passes your minimal threshold, you might choose to forgo screening because it's just adding cost. If the government tells you that you must consider a broader pool, where some of the applicants do have the necessary aptitude and some do not, and you then decide to add screening, that does not mean the screening is meant to filter out the melanin content.
If you want to prove that their aim was to filter out people because of their race, you have to prove that the test itself doesn't measure aptitude, or that that it's distribution is the same between the smaller and broader applicant pools.
This is tangential, but your points on infering motives from qualification criteria brought to mind a video on a completely different context you might enjoy as something to listen to on the way to work / in a workout.
Perun, an Australian defense-economist youtuber, recently made a video of how you could use reasonable-sounding arguments to justify objectively terrible decisions. In his context, it was a 'if you were a spy for an enemy country, how would you sabotage defense procurement for a country wanting to build up forces for a possible invasion against your true-loyalty country,' the principles behind it are more broadly applicable.
It comes to mind as a parallel because the very direct contrast between stated and real motivations, and one where you have to persuade people to accept things against their interests, while hiding your own. It includes ways to shape / manipulate qualification and testing systems to build a more credible case.
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Ass or not, the court accepted it. Perhaps they felt Duke Power was not using the Wonderlic as a proxy for race, but had been using race as a proxy for what the Wonderlic measures.
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