FREEDOM OK.NET

The Case for Colorblind Justice
By: John Perazzo
FrontPageMagazine.com | Monday, May 18, 2009

“Frank Ricci is a man on a mission. The white firefighter from New Haven, Connecticut, is currently involved in a Supreme Court case that will soon determine whether his city government unjustly denied him a job promotion because of his skin color. More broadly, the case of Ricci v. DeStefano is shaping up as the biggest showdown over affirmative action policies in recent history.

“Mr. Ricci’s saga started in 2003. At the time, he was one of more than 100 firemen who took a written and oral exam that the New Haven Fire Department (NHFD) administered in order to determine whom it would promote to fill 15 openings for lieutenant and captain positions. In preparation for the test, Ricci, a dyslexic who struggles with reading and retaining information, simply outworked most of his competition. He spent more than $1,000 to purchase books that the city had recommended as useful study guides, and he studied for 8 to 13 hours each day. When the test scores were ultimately tabulated, Ricci’s name was near the top of the list. The promotion should have been his.

“It didn’t happen that way. It soon emerged that New Haven’s black firefighters, on average, had performed quite poorly on the same test that Ricci had aced. In fact, not a single African American had scored high enough to qualify for a promotion. When word of this got around, a number of local black leaders with political influence thundered that the exam itself was to blame, arguing alternately that it was racially biased on the one hand, and a poor predictor of an applicant’s potential to fulfill the duties of a leadership position on the other.

“Especially vocal was Rev. Boise Kimber, a key vote-getter for New Haven’s Democratic mayor John DeStefano. Kimber held that “diversity” ought to be one of the chief considerations guiding the promotion process. By extension, he and his fellow activists demanded that if the department was not going to promote at least a few blacks, then it should not promote anyone at all. Moreover, they warned that if the city’s civil service board were to certify the exam results, significant “political ramifications” would result.

Sufficiently intimidated, New Haven concurred that the exam apparently was flawed and thus elected not to certify the results, just as Kimber and his fellow agitators had demanded. The National Law Journal reported that the city “defended its decision not to certify the results of [the] exams … because it feared Title VII liability if minorities were not promoted into the upper ranks of the department.”

“The reference is to Title VII of the 1964 Civil Rights Act, a federal law that “prohibits employment discrimination based on race, color, religion, sex, or national origin.” Unfortunately, activist judges have become increasingly inclined to view any differences in the test scores of separate demographic groups as prima facie evidence that the tests in question are invalid because they have a racially “discriminatory effect.” That’s precisely what happened in New Haven.

In response to New Haven’s decision, Frank Ricci and 17 fellow firefighters (16 whites and 1 Hispanic) filed a federal civil-rights lawsuit in 2004 contending that they had been wrongfully denied promotions they deserved by Mayor DeStefano and the city. But U.S. District Judge Janet Arterton dismissed the case, citing her concern that if the high-scoring whites were to be promoted, the low-scoring blacks might indeed file a discrimination lawsuit charging that Title VII had been violated.

“Next, Ricci et al. took their case to the U.S. Court of Appeals for the Second Circuit, where they presented their arguments to a three-judge panel that included Sonia Sotomayor, a Bill Clinton appointee who is considered Barack Obama’s likely nominee to replace outgoing David Souter on the Supreme Court. The panel sided against Ricci and upheld New Haven’s decision to dismiss the test results.

‘Four years later, all 13 members of the same Appeals Court presided over a retrial of the Ricci case. They again agreed, this time by a 7-6 margin, that the fire department’s test was invalid. Six of the seven judges who ruled with the majority were, like Sotomayor, Bill Clinton appointees. Echoing Judge Arterton, five of the seven judges in the majority agreed that the city could be “faced with a prima facie case of disparate impact liability under Title VII” if it were to certify the test results.

Notably, it was a moderate Clinton appointee, Judge Jose Cabranes, who, in his dissent from the majority opinion, said that the Ricci case involved “an unconstitutional racial quota or set-aside.” “At its core,” Cabranes wrote, “this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

“The question goes to the heart of a trend toward “reverse” discrimination that long predates Ricci v. DeStefano. The trend originally grew out of a simple premise: If the racist barriers preventing talented blacks from getting ahead were eliminated, then they could reasonably be expected to succeed at rates similar to those of whites—without the aid of preferential treatment or lowered standards. However, that ideal has since devolved into a racial spoils system that merely substitutes present-day discrimination against whites for past discrimination against blacks. Over the past four decades, the logical result of that perspective has been played out countless times in American courts.

“Consider, for instance, a 1982 case involving the San Francisco Fire Department (SFFD), which had a longstanding tradition of periodically testing large groups of applicants and hiring those who scored best. The test had two parts—one physical and one written—with the latter accounting for 60 percent of each applicant’s score. In 1982 a court determined that there were not enough minorities in the department and ordered that more be hired to “correct” this shortage—even though there was no evidence that the existing racial imbalance was due to any past discrimination.

“In response to the court order, the SFFD aggressively recruited and pre-registered minorities for the test. But because only 20 percent of them actually followed through and took the exam, the number of minorities who received passing grades fell far short of the court’s prescription. Thus the fire department, desperate to hire as many nonwhites as possible, lowered its cutoff score for the written test by 14 percent. When this lowered standard still yielded too few minorities with passing grades, the results of the written test were disregarded altogether. The department simply hired equal numbers of whites, blacks, and Hispanics, even though many of the nonwhites who were hired in this manner scored substantially lower than whites who were rejected.

“Following the discovery of the SFFD’s overall racial imbalance, it was also found that whites in the department historically had been promoted in significantly greater numbers than blacks—not because of discrimination, but simply because the former tended to outscore the latter on tests used to determine promotions. Yet even though no intentional discrimination could be proven, a court now mandated that the SFFD promote more blacks—so as to “rectify” the existing imbalance. Thus a special grading system was devised, allowing blacks to be promoted even over whites who scored much higher. Moreover, blacks who had failed the old, “discriminatory” test were now given jobs and back pay—based on the logic that they “should” have passed the first time.

“Nearly thirty years later, Ricci v. DeStefano has become the latest front in the fight against reverse discrimination. At issue is the impact that such “affirmative action” policies have on the American workforce. What effect do they have on white employees’ perceptions of, and suspicions about, the minorities who work alongside them? Moreover, do such programs really benefit minority employees? Above all, it is a question of basic fairness and equality: What kind of society are we creating when we accept an arrangement by which marginally qualified people are hired over those more qualified, simply because of their skin color or ethnic background?

“In its ruling in Ricci v. DeStefano, the Supreme Court will determine more than Frank Ricci’s future. It will also decide how far – or how little – the country has progressed in recent decades.

John Perazzo is the Managing Editor of DiscoverTheNetworks and is the author of The Myths That Divide Us: How Lies Have Poisoned American Race Relations. For more information on his book, click here. E-mail him at WorldStudiesBooks@gmail.com

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