Testing racial justice

By Michelle Chen Jun 30, 2009

The Supreme Court’s decision in Ricci v. DeStefano has unsettled both sides of the affirmative action debate. The disgruntlement of a group of firefighters in New Haven, CT set off a national debate on how far governments can go to ensure racial diversity in the public sector. The court sided with the firefighters’ claims of discrimination, concluding that the city had erred by throwing out the results of a civil service exam after realizing that no Black applicants had qualified for a promotion. The trajectory of the case–including the civil rights questions driving the litigation as well as the reaction of the media and the right–is a case study in how concepts of meritocracy and equality continue to be shaped and distorted by politics. Sherrilyn Ifill at the Root says the majority opinion establishes a new, more stringent standard for evaluating the need for race-conscious policies in public sector employment decisions, and s to remedy discrimination in public sector employment, and in addition, the court “takes the extraordinary step of making the factual determination that there was not ‘a strong basis in evidence’ to justify the city of New Haven’s actions.” In other words, the majority is imposing its own definition of fairness over a local legal dispute:

What Justice Alito sees in New Haven’s actions is not the good faith effort of a city with a history of discrimination in firefighter hiring to address a stark and alarming racial disparity in exam results. Instead, Alito is certain that there’s something of a racial conspiracy afoot—a conspiracy by black community leaders to discriminate against whites.

On the connection between Ricci and Judge Sonia Sotomayor (who endorsed the appeals court ruling that the Supreme Court reversed) Glenn Greenwald sees "irony" in the rush to defend the whites from the supposed oppression of affirmative action policies, in contrast to the repudiation of Sonia Sotomayor’s “empathy” toward far less privileged groups:

From the start, those protesting Sotomayor’s decision in Ricci did so by appealing not to law, but to emotion, non-legal precepts of "fairness" and empathy — at the very same time that those very same people mocked the notion that those considerations should play any role in judicial decision-making.

But, amid the heavy spin of conservative pundits, the case basically boils down to the value of a single test. So were the racially disparate results a product of a fundamentally flawed exam? TAP’s Adam Serwer challenges critics’ accusations that the city fell prey to political correctness when it dismissed the test in light of its civil-rights law implications.

The city had reason to believe the test was flawed, not only because how it was constructed favored things less applicable to actual firefighting, it advantaged people with more resources and personal connection to the department, and there are other ways to construct the test in which not only have more relevance to the job, they actually have less of a disparate impact. If the city had arbitrarily tossed out the white firefighters’ scores and promoted less qualified minority candidates, that would have been one thing. But they didn’t do that, the threw out all of the results–blame should be put on the city for having created a flawed test in the first place, but it’s not fair to say that the white firefighters were denied their jobs based on the kind of longstanding racial assumptions about black intelligence and diligence that still often govern hiring decisions. No one in the city believed that the white firefighters were incapable of doing their jobs correctly because they were white. … Throwing out the tests was… the result of the city being careless in how it composed the test–unfair to those who studied for it, not just because promotions were denied, but because the test was flawed to begin with. There’s no getting around the fact that Frank Ricci was wronged–but in my view, the city wronged everyone who took the test, period.

In the view of the court’s narrow majority, the exam proved the white firefighters’ merit, and the city unjustly denied them opportunity. But if the quality of the test, as the city contended, was too weak to withstand a legal challenge on civil rights grounds, then what kind of merit did the court reward? How does society weigh those scores against the burden of historical injustice? Image: Erika Bogan, New Haven firefighter (Slate)