The Right Choice

The United States Supreme Court correctly decided today to move away from racial hiring quotas, or anything smacking of them, and special-interest favoritism by ruling in favor of a group of New Haven, Connecticut firemen wrongfully denied promotions they had earned because too few minority candidates had been able to earn similar promotions.

The New Haven fire department had formerly administered a “promotion exam,” scores from which were intended for use in measuring the qualifications of firemen for advancement. A good number of New Haven firemen, black and white, studied hard for the test and took it. Some scored highly enough to be promoted, some did not. None of the test-takers scoring in the quartile necessary for advancement were black and so the city, fearing discrimination lawsuits, scrapped the test altogether and began to write a new one. The firefighters who had been promised promotions in exchange for high test scores were left twisting in the wind, despite earning the requisite scores.

Justice Anthony Kennedy wrote the opinion for the 5-4 majority in the matter, formally Ricci vs. DeStefano, requiring employers to show a “strong basis in evidence” before throwing out legitimate test results in cases of anticipated promotions, not just a fear of lawsuits by minority special-interest groups. The Wall Street Journal’s Jess Bravin explains: “Employers must be on very solid ground before making any decisions that would discriminate against a specific group of employees,” especially when deciding to disregard honest test results for fear of lawsuits from under-performers.

While New Haven claimed the scarcity of blacks scoring highly enough to be promoted would be interpreted as racism on the test’s part and lead to lawsuits, no way has yet been found in which the test, its administration, grading, or subject matter could advantage one race over another. Black, white, and Hispanic firemen were all consulted in designing the test.

Yesterday’s ruling reverses a previous one in favor of the city. The appeals court responsible for that earlier ruling included President Obama’s Supreme Court nominee Sonia Sotomayor, who voted for the city and against the firemen. Ms. Sotomayor, if confirmed, will replace retiring Justice David Souter.

According to Ms. Bravin, the ruling begs the question: “When is it proper to discriminate against one group in order to remedy discrimination against another?”

One answer, though circuitous, may be: groups which desire equal rights shouldn’t seek special treatment.

“The Supreme Court was sending a message to all employers,” one attorney says. “You shouldn’t engage in a form of intentional discrimination to avoid unintentional discrimination.” As Justice Kennedy notes in his opinion: “Whatever the city’s ultimate aim – however well-intentioned or benevolent it might have seemed – the city made its employment decision because of race.”

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