Toward the end of last year’s election, I turned to a young African-American acquaintance and said, "If Barack Obama wins, you can kiss goodbye to affirmative action, or what’s left of it after 20 years of Supreme Court cases whittling it away.
"Really?" she said, "You think so? I don’t agree." I responded, "Would you think affirmative action for women should have been sustained if Sen. Clinton had won the Democratic nomination and the White House?" "I may not agree with you, but I get your point," she responded.
My prediction is starting to come true, as this week’s Supreme Court ruling in the Ricci case demonstrates. On Monday the Justices ruled 5-4 that white firefighters in New Haven, Conn., suffered unfair discrimination because the city did away with a promotional exam—that, after none of the African-American firefighters who took the test qualified for promotions.
The city gave as its reason for discarding the test that city officials feared they might be sued for "disparate impact" on minorities in violation of Title VII of the Civil Rights Act of 1964. The white firefighters said the city’s action constituted reverse discrimination and violated Title VII.
Would the Justices have ruled the same way if Sen. John McCain were in the White House? Perhaps, but having an African-American or bi-racial president gave much better support to the majority than if yet another white male were in the White House.
What does Title VII do? It bars employers from hiring or promoting employees on the basis of tests that disparately affect members of different racial groups. If, as in New Haven’s case, only one ethnic group can pass the test, the test is deemed to be creating a disparate impact on other groups (in this case, blacks or in other cases Hispanics, Asian-Americans, Native Americans and so on) and must be discarded. The one exception is in cases where the employer can show that the test is necessary for the conduct of its business.
Was the Supreme Court ruling wrong? In my humble opinion yes, but also inevitable now that America has elected a President of color.
Clearly whites, especially white males, need no racial preferences to succeed in certain industries (fire fighting is for some strange reason one of those industries) where the absence of women and persons of color is so manifest it is glaring. But if firefighter department chiefs can make the claim that American voters are now race-blind enough to have elected a black president, they are less blameworthy for claiming colorblindness in their promotion process as well.
New Haven and other city firefighting departments ought to drop the use of tests as a barometer of whether someone is worthy of promotion or not. But doing so opens the door to claims that promotions are being based on nepotism, cronyism and all manner of nasty reasons other than discriminatory tests.
One New York Times online commentator noted that…"Justice Kennedy’s aggressive reading of the record, coupled with Justice Alito’s concurring opinion suggests that the court is impatient with what it perceives to be race-based politics." There’s good reason to be tired of race-based politics if one remembers that President Kennedy coined the term, "affirmative action" almost 50 years ago as a "temporary remedy" for discrimination. But there’s every reason to understand why affirmative action should stand, if one considers historian Roger Wilkins’ 1995 quote, "blacks have a 375-year history on this continent: 245 involving slavery, 100 involving legalized discrimination, and only 30 involving anything else."
The Supreme Court decision is unfortunate and will make it much tougher for future plaintiffs to win claims of discriminatory test-based promotion. Discrimination claims are already incredibly difficult to win.
Has race-bias disappeared from the workplace? Hardly! The same is true for gender bias. But with President Obama in the White House, opponents of affirmative action who claim America is a colorblind society do so with much greater credibility than when Ronald Reagan first started making it in the 1980s.
(Bonnie Erbe is a TV host and columnist. E-mail bonnieerbe(at)CompuServe.com.)