EDITORIAL
On Monday, the Supreme Court overturned a ruling in the Ricci case. They ruled in favor of white firefighters who had passed a promotional exam for captains and lieutenants with the New Haven, Conn., fire department.19 white men and two Hispanics passed the test. No African American firefighters passed the test. It is noteworthy to mention that the population of New Haven is 60% minority.
The city of New Haven threw out the test results citing a fear that the city would be sued by black firefighters under the Civil Rights Act of 1964. The 20 firefighters filed suit arguing reverse racial discrimination and that the city violated their civil rights.
The city of New Haven believed that they had a fair and equal test. However, because no blacks passed the exam, the city felt that the black firefighters would sue under the “disparate impact” of the test.
Disparate impact states: A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.
Based on the outcome of the test, the city felt justified in nullifying the test. A district court judge sided with the city and tossed the white firefighters’ suit out before trial.
This case was significant on its own right but achieved hyper attention shortly after Judge Sonia Sotomayor was nominated for the Supreme Court. Sotomayor had endorsed the early decision on the case at the appeals court level. This case then took on a whole new meaning. For the right wing conservative community, the ruling served as a referendum on Sotomayor.
A three-judge 2nd Circuit panel, including Sotomayor, backed the decision of the district court judge with a short one paragraph ruling. The three-judge decision was based on precedent and found no wrong doing by the district judge. The Supreme Court decision itself was not a unanimous decision, but a split decision with four judges dissenting from the five member majority vote.
The justices acknowledged that the adverse impact against minorities in the test was significant. In her dissenting opinion, Justice Ginsburg stated that the majority opinion’s “recitation of the facts leaves out important parts of the story.”
“Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow,” Ginsburg wrote. According to Ginsberg, the remanding of the case “ignores substantial evidence of multiple flaws in the tests New Haven used. The court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.”
While Judge Sotomayor will have to answer questions regarding the Ricci case, it should not play a significant role in the nomination process. The reversal of this decision was anticipated and produced no surprises.
What is significant is the impact this decision has on the Civil Rights of minorities in the country. The implication of this ruling is that all ethnic communities are now on equal footing, we all have the same opportunities. This could be nothing further from the truth.
Reverse discrimination has become a popular tool to reverse gains achieved through the Civil Rights Act. We have seen the use of this from Ward Connerly who has argued reverse discrimination and equality largely based on the population growth of ethnic communities erasing Affirmative Action in California.
Locally in San Diego the General Contractors Association used this logic to reverse Affirmative Action in contracting opportunities with the City of San Diego. Shortly after winning their case, contracting opportunities for minorities dried up. Hispanics and blacks were receiving less than one percent of the contracts awarded. Woman contractors received even fewer contracts.
As the Ricci case highlighted, black fire-fighters are being blocked from promotion. This is not an isolated situation. Instead of making the effort to find out why and produce a test that is equitable, the conservative majority on the Supreme Court justified the test scores and validated the primal facial discrimination. As Civil Rights advocates are now intoning, this indeed is step backwards in equal opportunity and equal rights.