The Content of Their Character

July 3rd, 2009

I wrote in Sotomayor Decision Overturned that the Supreme Court’s Ricci v. DeStefano decision should have nothing to do with the confirmation of Judge Sonia Sotomayor.  My reason was that the voters elected President Obama and the Democratic majority in Congress, and they should get the nominees they select, barring any major disqualifications that might emerge.  That’s the way the system is supposed to work.

Aside from the Sotomayor context, reading and thinking more about the decision itself I’ve come to the conclusion that it’s more important than even the justices themselves seem to think.

The city of New Haven, CT gave a promotion test to firefighters for advancement to command positions.  The process was carefully designed to be neutral in terms of race and ethnicity.  For example, nine three-member exam panels were used, each panel including one white, one Hispanic, and one African-American.  Minorities were also over-sampled in developing the questions that were asked.

However, when the test results showed that whites passed the test at double the rate of African-Americans and Hispanics, with no African-Americans scoring high enough to be promoted, the city threw out the exam.  Not long ago, under Title VII of the Civil Rights Act of 1964, the city’s action would have been not only acceptable but possibly required because the promotion test had an apparent disparate impact on minorities, even though it clearly wasn’t intended.  This was long-established by the Act and subsequent amendments and court decisions.

The Fourteenth Amendment presents a problem, though — as it always has.  How is someone given “due process” and “equal protection of the laws” when he or she is denied promotion because a member of a minority group must be promoted?  The answer is pretty simple if the Fourteenth Amendment means anything at all.

New Haven maintained that it was justified in scrapping the exam because of legal advice that it might be subject to action under Title VII by minority firefighters because of “disparate impact.”  The Court ruled that wasn’t a sufficient reason; a strong basis in fact must be present that clearly shows the existence of “disparate impact” under Title VII.  There are disagreements, among the justices and among lawyers, about the future influence of this decision as a precedent.

In reality, it seems that we’re coming to some kind of balance.  It’s still forbidden to intentionally discriminate — for example, by designing tests that have an intended disparate impact.  But that now applies to everyone, it would seem, regardless of race, ethnicity, gender, etc. 

What we’re really talking about here is affirmative action, in the broadest sense.  I strongly supported affirmative action in the early days because I believed that the only way to redress past discrimination was to give a leg-up to those who had been disadvantaged.  At this point, we must move beyond that to considerations of individual merit in all aspects of our national life.  After all, our president is half African-American and half white, our attorney general is African-American, and throughout government and the private sector African-Americans are succeeding on the strength of their own abilities.

It’s time to move toward realizing the dream of Martin Luther King that everyone in America will be judged not “by the color of their skin but by the content of their character.”

For additional information and opinions:  

Ricci, et al. v. DeStefano, et al., Supreme Court (decision)
Ricci, et al. v. DeStefano, et al., SCOTUSWiki (briefs and documents)
The Court Changes the Game, Linda Greenhouse, The New York Times
The Meaning of Ricci, Charles Krauthammer, The Washington Post
Getting back to first principles of affirmative action, Richard A. Epstein, Forbes

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3 Responses to “The Content of Their Character”

  1. Harvey |

    Excellent post!

    Personally, I’ve always looked askance at affirmative action and I do believe what some of it’s opponents claim: it does more damage than good in the sense that it promotes the idea that minorities are less intelligent and less capable so they need a . . . what they call it in the gaming world . . . they need a “cheat.”

    Redressing past discrimination (BTW: the subject of reparations is in the news again) does nothing worthwhile, it just recreates the “racial divide” that racists thrive on.

  2. Tom |

    I really do think there was a time and ample justification for affirmative action. But that time has run out, and the country has moved on. At this point, I think programs and laws that fall under the rubric of affirmative action actually do quite a bit more harm than good.

  3. Dee |

    I think New Haven’s reaction was a bit knee-jerk. The city was scared that promotion to a certain set of economically secure, in-demand, jobs with benefits made a divide on the color line. They wanted to scrap the test for fear of discrimination, which ironically happened anyway. If anything, I foresee a reverse discrimination backlash, maybe even more prescient on the count of some undercurrents of racial animosity going on now. But we continue to lose sight of the critical issue. Lawsuits aside, inequalities continue to exist.

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