Fairness wins…for a change

Chalk one up for fairness.

That’s the upshot of the U.S. Supreme Court’s decision for New Haven firemen who found themselves deprived of rightful promotions simply because they were white and because their fellow black firefighters threatened to sue the city because they failed to qualify.

It is a case that will be discussed at length in the confirmation hearings of Supreme Court Nominee Sonia Sotomayor, who as a federal circuit court judge joined in an opinion supporting New Haven’s invalidation of the qualifying test simply because no African Americans made the cut, despite intense efforts to make the test fair to all cultures. But there is little probability that her participation in that decision will prevent her from joining the court that overturned it. The Supreme Court’s 5 to 4 vote was just too close and the Democratic majority in the Senate too large for that to occur.

What made this case so important was the fact that there is no evidence the promotions examination was rigged to favor one group over another. The city conceded that it had negated the results for fear of a lawsuit under the "disparate impact" provision in Title VII of the Civil Rights Act, the basis of for the lower court’s action. Title VII says that while individuals may not be treated differently because of their race, sex, or religion, seemingly neutral testing requirements can be discriminatory if they have a disparate impact on members of one group.

The court’s majority said that wasn’t the case in this instance and that concern over possible litigation could not "justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions" to lieutenant and captains in the fire department.

The case from the very outset seemed one of blatant discrimination against a group of firefighters who gave up second jobs and time off with families to study for the exam. The lead complainant, fireman Frank Ricci, who suffers from dyslexia, said he studied 12 to 14 hours a day. Why no African Americans and only two Hispanics passed the test is anyone’s guess. But it seems obvious, given the fact the written exam apparently was culturally neutral, that they did not study as hard or were otherwise unqualified.

The application of most civil rights law is based on the premise that white racism doesn’t exist, that only blacks can be the victims of bias. The court’s ruling, as it should, says otherwise, particularly in the public sector where the largest impact is expected.

Justice Ruth Bader Ginsberg in dissent expressed "empathy" for the firefighters who brought the suit but decried the ruling’s undermining of Title VII. Justice Samuel A. Alito Jr. responded that the plaintiffs do not demand sympathy but "evenhanded enforcement of the law."

Most cities have given up written exams for promotions for the very reason that they inhibit the ability to control diversity in the top ranks. Actually, the New Haven test counted for 60 percent of the grade and 40 percent on interviews. Critics contend that doing away with the exams allows for a quota system that measures promotion not on the basis of qualification but on the need to place minorities in leadership positions equal to their percentages of the general population.

What has been obvious for sometime now is that if the playing field is ever to be balanced, minorities should be brought however possible to the same level of proficiency as those against whom they must compete, that reliance on reverse favoritism is no way to right the boat of social justice. The New Haven firefighters wanted this enough to sacrifice to get it. It is unclear whether the minority firemen now officially denied promotion by the Supreme Court had the same motivation.

Sotomayor and her colleagues on the 2d Circuit Court of Appeals seemed enough troubled by the case to merely issue a paragraph of support for New Haven’s position. It was in sharp contrast to the Supreme Court’s 89 pages of opinions, concurrences and dissents.

The future impact of this will be fascinating.

(E-mail Dan K. Thomasson, former editor of the Scripps Howard News Service, at thomassondan(at)aol.com.)