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Notes -
A major discrimination settlement has been reached with NYC candidate teachers.
The NY Post is reporting that New York City has reached a $1.8B bias settlement with roughly 5200 Black and Hispanic teachers who failed a New York State teaching certification exam, which prevented them from serving as teachers in NYC public schools. At least 225 would-be teachers will receive payments exceeding $1M (not including ancillary benefits like lifetime pensions for jobs that were never performed).
I am not a lawyer, and I have no familiarity with this kind of litigation, but I was surprised at the settlement. It's possible that NYC got spooked by recent high-profile discrimination lawsuit outcomes (jury verdict against Equinox here, settlement with Fox News here), and it's possible the legal fees and likely result of a trial made settling prudent for NYC. But I wonder whether NYC politicians (or bureaucrats) failed to mount a vigorous legal defense out of ideological sympathy for the plaintiffs.
I also don't see how this kind of settlement - available only to failed candidates based on their race - can satisfy an Equal Protection standard. Won't failed white candidates have a discrimination claim?
Anyway, there's no shortage of culture war angles to this story. NYC famously pays $38,000 per public school student / year, with mediocre outcomes; once again the tax payer seems to get a raw deal. There are the perennial issues around disparate racial impact from ostensibly race-blind hiring practices. The NYT doesn't seem to have reported on this, which raises questions about media coverage. And so on.
I want to focus on a different question, though: to what extent (if at all) do such high-profile, lottery-style bonanzas undermine the case for honest, low-paid toil among the working class? I have a pet theory that the seeming arbitrariness of financial success in America (and perhaps other countries) is a major factor (not the only one!) among prime working age men exiting the labor market. Events like this feel deeply unfair - why work your whole life if you can get paid to not work? And nobody wants to participate in a system that's rigged against them.
$1.8B/5200 teachers = 350k/ea on average. $1.8B/8M people in NYC = $250/ea. Not nothing, but not that much really. Certainly less than the amount from one year's income tax that goes to education.
The idea that all 8 million New Yorkers shoulder an equal share of the tax burden or, indeed, that everyone chips in at all is... quaint.
The more correct assessment is what other things could have been done with $1.8 billion.
And what second-order effects might there be from showing that the city will make massive payments to literally under-qualified workers rather than defend a lawsuit.
Or what happens if more of those high-earners who pay most of the taxes decide to move away.
Adding to your comment from a linked article:
NYC has 3.8M city income tax payers
Average burden to each of the 41k top 1%: $18,000
Average burden to each of the 410k 10-1%: $1,141
Average burden to each of the 3.3M 0-90%: $180
Those 3 points lay on a graduated curve, but still. Oooof.
The NYC budget for FY 2023 is 37B, so the settlement (probably paid out over time) represents 5% of this years budget.
Also notable: NYC/NYS spent over decade fighting the case. The state was detached at some point. The case originated in the 1996's, and became a class-action. The implied argument was that the test was not designed to be g-loaded, nor was it confirmed to be a predictor of classroom success, which lead to unfair disparate impact. In one item, applicants were asked to explain the meaning of an Andy Warhol painting. 90% of white test takers passed the 80 question test, while 53% of Blacks and 50% of Latinos passed.
I'd be surprised that this case has hung around this long, but I imagine it was getting appeals at EVERY STEP where each appeal can add a year or so by itself.
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This is another piece of evidence that if you're going to IQ test your applicants (a very good idea) you should just use Pearson or Wonderlic or another big company that specializes in these things rather than making your own homebrew test. It's like the advice to not implement cryptography primitives yourself: due to how US civil rights law works you really want to use something that already has a ton on background research done to preemptively counter any bogus lawsuit that might come your way and ensure that even if this somehow does happen you have a big company like Wonderlic on your side which is very interested in seeing that lawsuit fail (or else their hard earned reputation is destroyed).
I don't even consider this event to be an example of racial spoils. It was black and hispanic people who brought the lawsuit, had white people who failed the test also been part of the class action they too would have gotten a share of the bounty.
Except that this is precisely the pro-monopoly incentive structure that causes all the megacorps and ruins the competitive landscape and free market principles. Megacorps snatch all of the rents and economic surplus in many economic niches because they can charge monopolistic prices and any potential small competitors get lawsuited to oblivion.
Which I guess doesn't mean as an individual actor it's unwise to do it, tragedy of the commons and whatnot, but it's more evidence that something structural needs to change that enables this in the first place.
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Basically the plaintiffs kept the case alive by hook or by crook until they got first a friendly judge and then a friendly city administration. It's an illustration of the principle that the struggle continues until the left wins. (Yes, abortion is a reversed exception. But rare).
People repeat this a lot but the only explanation I see for it is that the left keeps fighting and the right just doesn't. If you don't like the left that's bad I guess, but it rarely seems to be used to support the more general point: you have to actually expend effort for your beliefs to win, and you have to keep doing that forever or your beliefs die. "Blood of tyrants" and all that.
Without that, it always just feels like whining that other people actually try.
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I think this makes it more rational to avoid honest work by only a negligible amount.
From the perspective of a working class person, the existence of such opportunities is no different from all the other "lottery-style" phenomena that already exist (becoming a reality TV star, famous YouTuber, an actual lottery, etc.)
In this case things happened to work out very nicely for a lot of the plaintiffs, and they received hundreds of thousands dollars without having to perform any labour. However if the bureaucrats had had less progressive sympathies, or anything else had gone wrong, they would just be far worse off than their colleagues who had passed the test and continued to be full time teachers.
Also, reading the article, and the suit (http://www.gulinolitigation.com/docs/DK%20001.pdf), the plaintiffs continued to follow the path of low-paid work even after the class action was filed. And they all seem to have made a sincere attempt to pass the tests ("...Grim recalled hiring private tutors and studying for it during the early 1990s, before failing many times.")
The lawsuit was not a case of lazy people trying to get the money for nothing. They just lacked the aptitude to pass the tests, and continued to work hard for even lower pay/prestige - I believe that they did not (originally) want this, and just wanted to be allowed to teach full time.
"Why get a driver's license when you could go your whole life without ever getting pulled over by the police?"
"Why not smoke when sometimes smokers live to a 100 and non-smokers sometimes get lung cancer anyway?"
The event feels unfair, but mainly in the sense that all situations involving a small probability of an extreme event feel unfair when the extreme event occurs (though obviously there is a racial angle - I think with regards to that, the settlement was genuinely unfair)
I think on average it's still better to go the straightforward path of value-producing labour. This is much more stable, and almost certainly has a higher expected value (As OP notes, and I agree, this case seems pretty unusual, and so such a tactic is unlikely to work out - but I would be open to evidence to the contrary)
Replied at the wrong level, sorry.
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No, actually they would have been just as well off as their colleagues, because their colleagues are not full time teachers, their colleagues are people who aren't capable of being teachers. That's what separates this from the various 'tap into the zeitgeist somehow and become an overnight star' lottery professions - those things are lotteries because there is no formal process for joining them. These not-teachers are getting a substantial pay day specifically because they failed the formal process to become a teacher. It doesn't matter how hard they worked at it, it exceeds their capabilities! It's like suing the Olympics for not giving me gold in sprints because I trained every day - which is to say the kind of joke most people wouldn't make because it breaks their ability to suspend disbelief.
Those are both gambles that millions of people made during the 20th century. But the point I think ebrso was making was that working is supposed to be, and has been claimed to be for an exceptionally long time, more lucrative than not working.
I was answering OP's question about whether the existence of cases like these make it that it is now irrational to not try and game the system - my comment was not making any moral judgements on the people in the class action and what they are/are not entitled to.
From that perspective it does make sense to compare them, as you have, to part-time teachers - as both have the same merit.
And my point is that it still is more lucrative to work than to be unemployed.
Here, there weren't any "non-workers", since the plaintiffs in the class action were just incapable of passing the test - but they had the same outcome as a hypothetical teacher who can pass these exams but deliberately flunks to try and file a discrimination settlement.
And this time around, it happens that the competent (Black and Hispanic) teachers would have actually have been better off if they'd flunked the test.
Of course all of these things are gambles, but I chose them as examples because I believe that they are all bad gambles, that they have negative expected utility. I think a rational actor would choose to pass the test (if they have the ability to do so) instead of taking this wild chance.
But to address the separate point you made - that it is unmeritocratic and unfair that the courts and politicians allowed such a situation to occur, in which the general public was forced to subsidise incompetence - I fully agree.
Though I think the behaviour of the plaintiffs was understandable, and I can't honestly say I would have done any differently in their shoes (The only downside of filing such a suit is the massive damage to your reputation caused by being seen as a welfare queen begging for handouts. But a demoted part-time substitute public school teacher has very little to begin with, and doesn't suffer much from losing it)
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The lawsuit is a class action suit brought on behalf of African American and Hispanic applicants, alleging that the test discriminated against African American and Hispanic applicants. The money is meant to compensate them. Why would white applicants have a claim on the money?
The plaintiffs were not paid not to work. Presumably most of them worked at other jobs since 1996 (when the lawsuit was originally filed). They are being compensated for the damages incurred as a result of the ostensible discrimination. If I dropped a hammer on your head while working on a roof, and as a result you had to quit your job as an accountant and work retail, would you frame a lawsuit settlement as paying you not to work?
Edit:
The article you linked says: "Four teachers in 1996 first filed a suit over the test. . . . The test was ruled discriminatory in 2012 by the third Manhattan federal judge to handle the case — which included a two-month nonjury trial and repeated trips to an appeals court."
That sounds like a vigorous defense to me. The settlement is only re the amount of damages.
The article you link is from 2018. Those settlements were in 2023. Edit 2: When I initially clicked the link, it took me here: https://nypost.com/2018/09/19/city-may-have-to-pay-out-1-7b-over-biased-teaching-exam/. Now it takes me here: https://nypost.com/2023/07/15/nyc-bias-suit-black-hispanic-teachers-and-ex-teachers-rich/ Did you change the link?
I never suggested White applicants should have a claim to anything, I only suggested that this outcome potentially invites an equal protection challenge. If a Black guy and a White guy sit for the same test, and both fail, but legal recourse is available to the Black guy alone, based exclusively on immutable racial characteristics, then it seems to me (a non-lawyer, but a member of the educated laity) that the White guy has clearly been denied equal protection of the laws.
I don't see what bearing the length of the process has on the vigor of the procedure.
I don't stand by my characterization of the lawsuit as paying teachers "to not work," although incidentally, NYC has done just this before. But certainly the plaintiffs were paid in return for nothing. If the settlement is intended merely to compensate for damages (i.e., make the plaintiffs "whole," i.e., to leave them in a similar state to where they might have been had the injury never occurred), then why wouldn't class members be eligible solely for the difference between what they actually earned and what they would have earned as NYC teachers (with adjustments for factors like difficulty of position)? If a hammer falls on my head at the fault of my employer, and I go and take another paid job while continuing to receive a paycheck from my original employer, then it's even better for me than payment explicitly for not working!
I haven't edited the original post since publishing.
What makes you think that legal recourse was not available to white applicants? Do you have evidence that they attempted to sue, but were rebuffed?
You claimed that the city rolled over. The fact that they fought the case for 27 indicates that that is not the case. As is the fact that there were numerous appeals.
How do you know they weren't? You have no idea how the damages were calculated, do you? And I believe someone on here calculated the average payout at 350K. That is nowhere near full teacher salary for 20+ years. And the award is going to include interest, and lost pension contributions, not just lost salary.
Very odd.
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The reason the city lost is because the test setters did not have the requisite proof that performance on the test was reflected in performance on the job. It probably was, almost any standardized test like this would be, but their only testing was asking a small number of teachers whether the topics on the test were important to teaching or something.
IQ testing job candidates (even if/when there are outcome differences between groups) is 100% legal in the US. The military does it. Countless civilian employers do it (those famous ‘Google interview questions’ are IQ tests). Police do it. There are companies like Wonderlic, Pearson etc who make a lot of money selling these tests to employers.
But you have to prove the test reflects on-the-job performance within a reasonable period. This is ridiculously easy, employee evaluations and objective measures of success (targets, sales figures, good feedback, etc) will almost certainly reflect intellectual ability with a strong correlation, but you have to put in the work and say “on average, here are the stats that show that the higher you score on this test, the better you do in the job”.
In this case it went against NYC’s politics to argue the test did work, so instead they tried to claim the state made them do it, which seemingly wouldn't have been accepted as an excuse by the court.
This is another good reason to despise "civil rights" attorneys. Sure, we already know that pretty much every type of job performance correlates with IQ, but if you don't hire the appropriate HR workers and file the appropriate paperwork, you can expect to be sued for racistly not proving that you actually do prefer to hire competent employees.
That’s all lawyers. The law is about technicalities.
Is filing for habeas corpus after your client has been arrested because he criticized the president a technicality?
Yes, there is a lot of rent seeking in the American legal profession, but "all" is a strong word.
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I think within the context of civil rights law it’s a fair requirement. Technically you can’t make the test rely on knowing information about schisms in the Catholic Church or halachic law or rudimentary Italian or something to hire only people from the demographic you want if the job has nothing to do with those things. If you disagree with civil rights law then that’s fine, but within the context of it the stipulation makes some sense.
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I sense you did not peruse the linked article, which says tgat the lawsuit was filed in 1996, and "The test was ruled discriminatory in 2012 by the third Manhattan federal judge to handle the case — which included a two-month nonjury trial and repeated trips to an appeals court." That does not sound like the city conceded anything. The recent* development is re the amount of damages.
*Although it isn't recent. The linked article is from 2018.
Edit: OP seems to have changed the link. When I initially clicked the link, it took me here: https://nypost.com/2018/09/19/city-may-have-to-pay-out-1-7b-over-biased-teaching-exam/. Now it takes me here: https://nypost.com/2023/07/15/nyc-bias-suit-black-hispanic-teachers-and-ex-teachers-rich/
The city seemingly agreed to stop fighting the case when DeBlasio set aside the $2bn for compensation. That was at least in part for ideological reasons since it seems unclear why the city couldn’t have appealed to a higher level court - as someone else said, current SCOTUS might well rule all these aptitude tests universally acceptable (ie remove the requirement to prove unequal outcomes are justified by the job’s requirements), and that really isn’t something the kind of person who works in the NYC Department of Education wants.
Again, the city lost because to prove the case it would have to show that the better someone did on the test, the better a teacher they became. This would be trivial to prove even after the fact, since g is correlated with everything, but for some reason the city chose not to do it.
Have we considered that the city is just incompetent?
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The trial court verdict on the issue of whether the tests were discriminatory was in 2012. Gulino v. Bd. of Educ. of City School Dist. of NY, 907 F. Supp. 2d 492 (SD New York 2012). That was during the Bloomberg Administration. DeBlasio took office in 2014.
The DeBlasio administration appealed the damages award in 2019. See timeline here
As noted in the current version of the Post article, the City initially prevailed in 2003, but the decision was reversed in part on appeal. As described by the trial court in 2012: "In 2003, after five month bench trial, Judge Motley entered judgment in favor of the Board and SED, finding that their use of the Core Battery exam and the LAST did not violate Title VII. In 2006, the Second Circuit Court of Appeals vacated the District Court's judgment with respect to the LAST, and remanded the case."
As for g being correlated with everything, that might well be true, but is it legally relevant? Because this is how the court described the governing law in 2012:
Honestly, the argument that the City rolled over on a case that was filed in 1996 but not settled until 2023 is difficult to take seriously unless there is a ton of evidence marshaled in its favor.
All of these are applicable to generic IQ tests (verbal and spatial skills are fully representative of a lot of work eg. teachers or really anyone with a job that involves words/numbers/metrics can do).
But the test was not a generic IQ test, was it? The complaint was about a specific test. The issue is whether that test meets the criteria, not whether a generic IQ test would have.
In fact, the plaintiffs originally challenged two tests, but prevailed only re one of them. The other one apparently met the criteria.
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Yes, my read of the situation is that they were likely to win and didn't want to set that precedent.
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AFAIK a settlement doesn't have to comply with any standard. It's not a law or court decision, it's a deal to make a lawsuit go away.
This isn't entirely correct: settlement agreements are contracts, but they're contracts that must be recognized and permitted by a judge (in most circumstances after certain early procedural stages in a court case). That's what separates them from just paying off potential plaintiffs or plaintiffs just voluntarily dismissing a case before answer, that they (or rather, mechanically, the judge issuing a dismissal with prejudice in response to a settlement agreement) are final actions on a court case that prevent further adjudication of the same claims. This is especially relevant for class-action lawsuits, where even the class certification itself must be accepted by a judge before settlement negotiations even make sense.
Because class-action lawsuits are final decisions binding on people who don't have any control of the legal strategy and may not even be aware of the lawsuit, there's massive potential for 'friendly' lawsuits, for plaintiffs that enrich themselves at the cost of the class, or for lawyers who enrich themselves at the cost of plaintiffs and the class. See the US v. NYCHA settlement rejection on appeal for an example of a lawsuit, or the more recent Purdue Pharma stuff.
Now, class-action certifications and settlement agreements don't have to be racially nondiscriminatory in this sort of context. Although I'd argue Shelly v. Kraemer is at least relevant, there's a pretty long history of class-action lawsuits seeking to resolve a specially-designed class's hurts without covering non-minority or non-covered-minority harms despite massive overlap.
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Effectively this
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