Playing Hardball With Affirmative Action

Sure, the Supreme Court’s latest affirmative action case makes for a great shout fest, but Chris Matthews is missing the nuance of the Ricci case.

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New Haven has a particular history of discrimination in its fire department. Black firefighters and applicants have successfully sued the department for racial discrimination in hiring or promotion numerous times, most recently in 2004. Although New Haven has made strides in the hiring of black firefighters, the promotion of black officers continues to be a problem. In 2007, although a little over 30 percent of entry-level positions in the department were filled by blacks, African Americans held only 15 percent of supervisory positions.

 Thus, the only stigma at issue in this case is the stain on fire departments throughout the U.S. that have treated their firehouses like private, white familial enclaves. That’s why it was so galling to hear Chris Matthews on Hardball defend the use of patronage and family connections in some Irish Catholic communities to maintain a disproportionate access to firefighting jobs not as discrimination but as “tradition.”

It’s no surprise that this case pushes all kinds of buttons. We’ve been trained not to think of affirmative action in this context. Even many black people will denounce affirmative action as having helped only elite and middle-class blacks and white women. They and others ignore that some of the most important affirmative action gains in the history of this country were achieved by lawsuits that challenged racial barriers to employment in police departments, firehouses, and construction and electrical unions. These jobs, traditionally filled by young men, often didn’t require a high school diploma but provided good, well-paid work with benefits. In fact, the requirement of high school diploma was imposed in some jurisdictions only after the passage of Title VII, precisely to keep black applicants out. But access to these jobs are critical for working-class black people and their families. To the extent that there are sizable numbers of blacks in these jobs in many of our cites today is due, in large measure, to successful affirmative action lawsuits or voluntary affirmative action measures.

Many whites are simply ignorant of the shameful history of whites excluding black applicants from municipal employment. Others are beneficiaries of that exclusion and see these jobs as the last stronghold of white control in our cities.

Some simply see this case as being about Frank Ricci and his right to a fair and transparent process for promotion. It’s worth pointing out that even had the test been certified, it’s not certain by any means that Ricci would have received a promotion. The names of those who pass the test are placed on a list that is submitted to the Board of Fire Commissioners. Lieutenants and captains are selected from among the names on the list.

Given all of the departures from standard practices in the creation of the test, and the fact that its results showed racial differentials that were inexplicably more pronounced than in prior years, New Haven’s Civil Service Board was justified in its split decision on certification.

For whatever else it is, Ricci isn’t a referendum about affirmative action. This case is about a particular city, a particular fire department and a particular test.

In fact, in light of its particular history, the New Haven Fire Department should strive to adopt a test that is valid and objectively sound and that provides an evaluation of the relevant qualifications for candidates seeking important supervisory jobs. This new test should not be one that tips the scales in favor of minorities, but one that is consistent with standard testing practices and can withstand scrutiny by industry testing experts. That’s something that even Chris Matthews could agree with.

Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and a civil rights lawyer.