The Supreme Court has spoken today, in a 5-4 ruling in favor of the firefighters in the controversial New Haven case (Ricci v. DeStefano), and they have once again opened up a serious Pandora’s box. This case has always troubled me on the merits because it smacks of "well intended "affirmative action policy that does nothing to move us forward with regard to better recruitment, retention and advancement of black Americans in places where they have been traditionally discriminated against. Instead, this type of affirmative action provides fodder for opponents of affirmative action and conservatives who abhor the concept of “race based” remedies in in college admissions or the corporate marketplace.
The Ricci case on its face is simply unfair, and not what America is all about. I don’t think any of us, if we consider the facts of this case as we know them, can feel good about what New Haven did and how it went about doing it. The city erred greatly when they threw out the tests scores of the other applicants for promotion; if the case were reversed and it was a group of black firefighters who filed such a suit, we would all rightly be screaming for justice and recompense. That should be the same for these firefighters who happen to be white. The fact of the matter is that the City did a terrible job of handling this matter in a way that would have achieved their stated objectives (diversity in the force) all while preserving the integrity of the testing process.
My great concern with this ruling is not on the merits of the Supreme Court’s decision—based on my interpretation of the law they got it 100% correct. However, the problem is what opponents of affirmative action will now do with the ruling and how it will be used as a bludgeon against Supreme Court Nominee Sonia Sotomayor—who was one of a three judge panel to side with the City (3-0) at the Appeals Court level. As someone who has benefitted from affirmative action admission policies in law school and, I am sure, in some of the jobs I have held, I am an avid supporter of strong workplace policies that advance women and people of color in environments where they have traditionally been denied entrée, access and advancement.
The problem that I have come to understand over my 20 years as a professional is that the policies which are often dubbed “diversity” are not well received in the workplace or in universities, and they cause great backlash and resentment toward those they are deemed to help. I have lived it and so have many of you. Many whites feel that they had nothing to do with the past wrongs or sins of America and as such should not have to participate in any form of reparation or affirmative action. Cases like Ricci just fuel that smoldering fire of white resentment toward blacks and other racial minority groups.
The point of my argument though is that the Supreme Court was correct in its decision. Justice Kennedy nailed it in his majority opinion, writing:
Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions… We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard.
An employer cannot use fear of a lawsuit to justify unlawful conduct. It is unlawful in America to discriminate against persons on the basis of their race. If we are going to hold true to our greatest ideals that rule has to apply to white citizens as well. This is where we get into a messy situation with affirmative action. How far is too far, and how do we deal with those professions like mine (the legal profession) ironically that still have not opened their doors widely to women and people of color?
That is the real debate America must have this time around if we are going to come up with realistic and workable solutions to solving the challenges of past discrimination and how to remedy that wrong. I fear that, despite being correct on the basis of law, precedent and public policy all the high court did today with such a close decision was grant permission for more racial resentment and class divisions in our great nation.