If you didn’t know any better, you’d think the issue in today’s Supreme Court decision that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, is Supreme Court nominee Sonia Sotomayor, whose Appeals Court decision is the one the high court overturned. It’s not. It’s more black and white. It’s about race and whether you have a right to be promoted, according to the decision.
Both sides claim discrimination to some degree. African American firefighters say the test, itself, was discriminatory. White and Hispanic firefighters say failing to promote based on the test discriminates against them. One of them Frank Ricci, studied long and hard to win the promotion. He’s dyslexic, and “found it necessary to ‘hire someone, at considerable expense, to read onto audiotape the content of the books and study materials,” the court noted.
Justice Anthony Kennedy said the firm that built the test, rode along with firefighters and oversampled minority members of the department.
At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results–which IOS would use to develop the examinations–would not unintentionally favor white candidates.
But here’s the big question: Can you throw out test results merely because of the race of those who stood to be rewarded by the result? “Without some other justification, this express, race-based decision-making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race,” Kennedy wrote.
Justice Antonin Scalia sees the ruling as the first step in resolving a long-simmering debate. “The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how–and on what terms–to make peace between them.”
Good luck with that.
Justice Ruth Ginsberg, in a dissent, first takes away the right to promotion:
“The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion.”
And then appears to convey it based on a community’s racial make-up:
“By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served–as it was in the days of undisguised discrimination–by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.”
Which, of course, sets the stage for the subsequent public opinion debate: Who’s fault is that? Is it the test? Or is it the culture of fire departments, a profession which have a long history of racism?
Ginsberg smelled the latter:
“At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and ‘wait a month and a half for some of the books because they were on back order.'”
Is this the beginning of the end for affirmative action? Few seem to think so. Marc Ambinder, writing on his Atlantic blog, says there’s no net gain for politicians on the issue:
It’s telling that affirmative action isn’t the stuff of campaign ads and fiery political speeches. During the Bush years did Republican Washington make big efforts to repeal federal affirmative action policy? This isn’t a consuming passion of the GOP and given its faltering efforts to appeal to Hispanic voters it isn’t likely to be.
What’s your opinion?