Playing Hardball With Affirmative Action

If you missed Chris Matthews’ whacked-out tirade against affirmative action last week on his shoutfest Hardball with Chris Matthews, don’t worry. I’m guessing you’ll have plenty of opportunities to hear similar screeds in the weeks leading up to the Supreme Court’s decision in Ricci v. DeStefano, the affirmative action case involving promotions in the New Haven, Conn., Fire Department.

The justices will issue their ruling next month. Ricci is an important affirmative action case for many reasons, not least of which because it’s become something of a rallying point for white men who can finally release some of the pent-up tension after the election of the first black president (in the Hardball segment, conservative commentator Pat Buchanan suggested that the Republican Party reorganize its image around the white plaintiff in this case). But it’s also got the kind of facts that make well-meaning white folks, and even some blacks, uncomfortable about the parameters of affirmative action.

It seems like a simple case. The New Haven Fire Department conducted an examination for applicants seeking promotion to captain and lieutenant. No black test takers made the cut, so the city, fearing it would run afoul of employment antidiscrimination laws, scuttled the test. To many, this just sounds fundamentally unfair.

But the Ricci case is not that simple. And that’s the problem with conversations about affirmative action. You say “affirmative action,” and people think they know what you’re talking about. They threw out the test? That’s unfair to the white applicants. Why couldn’t the black applicants just pass the test? Who wants a firefighter in a command position who can’t pass the test? Won’t this just stigmatize black firefighters?

What the exchange on Hardball and most discussions about this case show is the danger of talking about affirmative action in the absence of facts. I know that we lawyers tend to muck up good arguments with facts, but facts are important. So here are a few facts you may want to know about the Ricci case before you get into an argument about affirmative action at the water cooler.

First, the issue before the Supreme Court is whether New Haven officials violated the constitutional rights of Frank Ricci, a white firefighter who took and passed the promotion exam, when the city’s Civil Service Board failed to certify the exam. Why did the board refuse to certify it? Questions about the test were raised in part because the company that created the test failed to follow several practices regarded as “standard” among experts providing tests to fire departments. One of those is the submission of the test to a process that determines a relevant cutoff for a passing score. The test developer simply skipped this step. Nor was the test submitted to fire experts in New Haven to ensure its relevance to the particular conditions and realities for firefighters there. Thus, when the racially disparate results from the test differed substantially from the results of previous tests conducted by the New Haven Fire Department, alarm bells went off. The matter was submitted to the Civil Service Board. After hearing from the public and outside experts at five hearings, the board split 2-2 on whether to certify the test (the board’s fifth member, an African American, did not participate in any of the decisions).

Second, this case cannot be examined outside the very powerful historical context of race in urban fire departments in the United States and in this particular fire department in New Haven. As the NAACP Legal Defense Fund argued in its amicus brief to the court, Title VII of the Civil Rights Act of 1964 was amended in 1972 to include state and municipal governments precisely because of widespread discrimination in public sector employment. Fire departments have been among the most resistant municipal enclaves to integrate. It has been surmised that because firefighters essentially live together in the same space, whites have been especially resistant to integrating this workspace.

Unfortunately, fire departments have been the sites of some of the most odious incidents of racial discrimination. As documented by the LDF, even in supposedly desegregated firehouses in Washington, D.C., in the late 1960s and early ’70s, the beds, dishes and eating utensils of black firefighters in some firehouses were marked “C” for “Colored.” Segregated firehouses were maintained in jurisdictions from San Francisco to Memphis through the 1970s. And this is not just a relic of our past. The effort to address discrimination in fire departments is part of the ongoing work of civil rights organizations and the Department of Justice. In one compelling account, Legal Defense Fund lawyers revealed that in the Cleveland Fire Department, black firefighters were assigned to a battalion that was known as “Monkey Island.” In 2004.

Getting employed at all as a firefighter has been a challenge for black applicants. After the application of Title VII to municipal employers in 1972, blacks were kept from employment as firefighters and promotion to officer positions through changes in prerequisites for employment designed to disproportionately affect blacks; the use of quotas as a bar to black promotion; and, of course, the use of tightly held information about job openings and promotion opportunities.

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.