Tuesday, June 30, 2009

A rare victory for "Whitey"

In a 5-4 split decision the Supreme Court ruled in favor of the firefighters in a reverse discrimination suit, where a majority of the justices ruled that the city of New Haven, CT, improperly threw out the results of promotional exams that officials said left too few minorities qualified. The high court was being asked to decide whether there was a continued need for special treatment for minorities, or whether enough progress has been made to make existing laws obsolete, especially in a political atmosphere in which an African-American occupies the White House.

Being a white male myself perhaps I’m not qualified to have an opinion on this topic. That being said I strongly believe that affirmative action is an out-of-date concept which has no place in today’s society. Hopefully the Supreme Court’s decision in this case is a positive step in the right direction towards the complete elimination of all affirmative action policies from both the public and private sectors.

At the center of the case were the promotional exams taken by key plaintiff Frank Ricci and other firefighters in 2003 for lieutenant and captain positions that had become available in New Haven. Or more specifically it was the scores achieved on those exams. The top 10 exam scorers (in the competition for eight positions) were all white. The top African-American candidate scored 14th, and the top Hispanic candidate scored 27th. When the results came back, city attorneys expressed concern about the results, and the New Haven corporation counsel -- after several public hearings -- refused to certify the test, and no promotions were given.

I can only imagine how those conversations must have gone:

City Council Asshat #1: “Why would we possibly want to reward the diligent firefighters who busted their asses studying for this exam and subsequently achieved the highest scores? That totally wasn’t the point of the exam at all.”

City Council Asshat #2: “I couldn’t agree with you more. The point of the exam was not to identify the most qualified candidates for promotion but instead to create an ethnically diverse group of firefighters to promote."

City Council Asshat #3: “Shit, we were careful as hell to ensure broad racial participation in the design and administration of the test. How were we supposed to know 8 white dudes would get the top 8 scores?"

All together in City Council Asshat harmony: “Fuck it – let’s just throw out the test results and pretend it never happened.” (followed by a hearty round of laughter)

Head City Council Asshat in Charge (after a brief pause to try and stop laughing): “Then it’s settled. We’re all in agreement to put a hold on the promotions until we can figure out a more “fair” way to select a culturally diverse group of captains and lieutenants. Now on to the next order of business.”

At issue in the case was whether the city intentionally discriminated -- in violation of both federal law and the Constitution's Equal Protection Clause. "The city rejected the test results solely because the higher scoring candidates were white," wrote Justice Anthony Kennedy for the majority. "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."

Thank you Justice Kennedy. Thank you for cutting through all the bullshit, innuendo, and misperception in this case, and for being the voice of reason on the “highest” court in the land. You haven’t allowed your judgment to be clouded by misguided public opinion or partisan political posturing or pressure from the special interest groups, and for that I commend you. A level head like yours is exactly what the Supreme Court needs during these pragmatic times that our country currently faces.

In a dissent read from the bench, Justice Ruth Bader Ginsburg questioned the fairness of the test, which was 60 percent written and 40 percent oral. "Relying so heavily on pencil-and-paper exams to select firefighters is a dubious practice," Ginsburg said, calling the majority ruling "troubling." "Congress endeavored to promote equal opportunity in fact, and not simply in form. The damage today's decision does to that objective is untold," she said.

Relying on pencil-and-paper exams to select fire captains is a dubious and troubling practice? Seriously, Ruth? Are you somehow suggesting that intelligence should not be an important criteria in the selection of a fire captain? What about the situations where captains are forced to make split seconds decision that could literally mean life or death for their men and the people they’re attempting to rescue? Would it not be a benefit to have the smartest men on the squad making these types of decisions? If you really believe the answer to this question is no then you’re just plain stupid. You go on to say that the ruling will damage the promotion of equal opportunity. Hmm, that’ s interesting. I’d say rewarding those who put forth the greatest performance, regardless of their ethnic background, is the very definition of equal opportunity. But then I’m not a Supreme Court justice so what do I know, right Ruth?

The city said that under a federal civil rights law known as Title VII, employers must ban actions such as promotion tests that would have a "disparate impact" on a protected class, such as a specified race or gender. Kennedy argued that "the process was open [and] fair" and that the city officials "were careful to ensure broad racial participation in the design of the test itself and its administration." He added that "race-based action like the city's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable" under the law dealing with "disparate impact." Kennedy said the city had not met that threshold.

In short Title VII does not apply to this case, so quit trying to manipulate a 45-year-old policy to defend your indefensible actions, city of New Haven.

The case has received added attention because high court nominee Judge Sonia Sotomayor was on the appellate court that dismissed the appeal. Sotomayor was part of a three-judge panel that ruled in February 2008 to uphold a lower court decision supporting New Haven's move to throw out the results. In June 2008, Sotomayor was part of a 7-6 majority that denied a rehearing of the case by the full court.

It’s a good thing Sotomayor hasn’t already been fully approved for the Supreme Court or she certainly would have squashed this case again, and then the unfortunate white firefighters from New Haven, CT, would have been screwed for a third time. America - meet your newest Supreme Court Justice.

What really jumps out at me in this case is not so much that the Supreme Court got the decision right but more so the slim margin by which they got it right. The firefighters won the ruling by a 5-4 vote which means 4 out of 9 justices actually agreed with the city of New Haven’s discriminatory actions. Think about that. 4 out of 9 Supreme Court justices support blatant racism, albeit reverse racism, but racism all the same. Can you imagine what would have happened if the top 8 exam scorers happened to be African-American or Hispanic firefighters, and the city of New Haven refused to certify those test scores because they were hoping to promote white candidates instead?

If affirmative action really is the answer how about we make it apply in both directions? Here’s a ridiculous example to illustrate how this might work. I’m a huge fan of the NFL but I can’t help but notice how few white players there are in the league. Perhaps the NFL should institute a quota system to fix this disparity? Sure the talent level in the NFL would go way down and many more qualified and deserving black athletes would be unfairly left off the rosters but oh well at least affirmative action will have done its job in promoting diversity and equal opportunity, right? There was clearly a time when affirmative action was a necessity to level the playing field in an unbalanced society, but that time has passed. Let’s follow the lead of the 5 justices on the Supreme Court who’ve already embraced this reality and put an end to ALL discrimination once and for all.

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