In attempting to correct alleged “reverse discrimination” against white firefighters, the Supreme Court has made it easier to disregard past bias against minorities in making employment decisions.
Of course, the majority in the 5-4 decision in the case of Ricci v. New Haven, Conn.(www.supremecourtus.gov/opinions/08pdf/07-1428.pdf), would disagree with that assessment. But it’s true. In telling the City of New Haven it shouldn’t have gone the extra mile to ensure minority promotions, the court chose to ignore the very specific history of racial bias not only in New Haven’s fire department, but also in fire department’s across this nation.
Racial bias has been pervasive in America’s fire departments, where personnel are required to eat, sleep, and work with each other for 24-hour periods. It has only been in recent years that little black and brown boys and girls could routinely see firefighters who look like them and aspire to grow up to be a firefighter, too.
In a twist of irony, the ruling today came in a case that began in 2003, the same year that then-Justice Sandra Day Connor said it would be at least 25 years before America no longer needed race-based remedies to make up for past racial discrimination. It’s been only five years, but today’s more conservative court apparently believes that Dr. Martin Luther King Jr.’s “dream” of a society where everyone is colorblind has already been achieved.
So, the court said New Haven was wrong to throw out the results of an apparently discriminatory firefighters test just because it made it hard for minorities to get promoted. The test didn’t explicitly say “Blacks Need Not Apply,” so it must be OK. It didn’t matter to the court that none of the 27 black applicants and only two Hispanics qualified for promotion after taking the exam.
The city decided not to certify the test results because it feared that promoting only whites would lead to a lawsuit filed by blacks who would claim the test was biased. Title VII of the 1964 Civil Rights Act says employers cannot hire or promote on the basis of tests that have a “disparate impact” on minority applicants.
But white firefighter Frank Ricci and 19 others cited that same law to allege reverse discrimination — and the court bought it. It did not matter to the court that Ricci and the other plaintiffs were not being denied promotions; they simply had to wait for New Haven to install a new examination that wasn’t biased.
In fact, the reverse-bias lawsuit, in its five-year journey to the Supreme Court, delayed replacing New Haven’s flawed multiple-choice test with an exam that can better determine who should be a fire captain or lieutenant. Better tests, which include simulated tactical firefighting drills, are used successfully in other cities.
The ruling voided one by a lower court that included Judge Sonia Sotomayor. Justice Anthony Kennedy said, “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
By that reasoning, New Haven shouldn’t have tried so hard to promote more than the one black fire captain it has had since 2003.
The ruling casts a pall on all affirmative action, and confirms that judicial activist Chief Justice John Roberts is on a mission to end what he calls the “sordid business” of “divvying us up by race.”