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Political Hay
Reversing Discrimination
Five of the Supreme Court justices appointed by Ronald Reagan, George Bush, and George W. Bush had empathy for Frank Ricci. Ricci is a veteran firefighter who battled dyslexia to try and rise through the ranks of the New Haven, Connecticut department he served for over a decade. When the time came to take the promotion test and compete for eight open lieutenant slots, Ricci quit his second job, bought $1,000 worth of textbooks, and had a friend tape-record the contents to get past his learning disability.
Ricci studied hard. And it looked like his hard work was going to pay off: he came in sixth, qualifying for a promotion. But Frank Ricci didn't have the right color skin. Because almost all of firefighters who made the cut were white, the city of New Haven threw out the test results. There was to be no "disparate impact" or "adverse result"; there was to be no promotion for Ricci.
The liberal bloc of the Supreme Court had empathy for New Haven and others who discriminate in pursuit of diversity. In her dissent, Justice Ruth Bader Ginsburg displayed what legal writer Walter Olson described as "touching concern" for employers who "can anticipate costly disparate treatment litigation" thanks to the firefighters' victory.
Empathy, of course, has little to do with the Supreme Court's decision yesterday in Ricci v. DeStefano. What was at stake was color-blind justice under the law and the Constitution. More than that, the case exposed the often pernicious effects of well-intentioned affirmative action programs under Title VII.
New Haven paid an outside consultant to design the written portion of the promotion exams for lieutenant and captain so that the questions would be job-related and race-neutral. Forty percent of the exam was oral -- the fact that 60 percent of it was written is the result of collective bargaining agreements with the firefighters' union -- judged by scoring panels on which minorities were well represented.
In 1999, two blacks scored well enough to qualify for promotions and there was no controversy. In 2003, no African Americans and only two Hispanics scored high enough to qualify. Writes Steve Sailer, "The difference in whether 2 blacks passed in 1999 or 0 in 2003 is just a matter of small sample sizes."
City officials nevertheless feared New Haven would be sued if the test results were allowed to stand. The city's white mayor, John DeStefano, also heard protests from the minister who helps him get out the vote within New Haven's black community. So the verdict was: Sorry, Frank.
But the Supreme Court reached a different conclusion. "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," wrote Justice Anthony Kennedy in his opinion for the court.
Justice Samuel Alito, in a concurring opinion joined by Justices Clarence Thomas and Antonin Scalia, went even further:
As initially described by the dissent … the process by which the City reached the decision not to accept the test results was open, honest, serious, and deliberative. But even the District Court admitted that "a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven's African-American community." …
This admission finds ample support in the record. Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed 'kingmaker' … On one occasion, "[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions." …
Reverend Kimber's personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber -- then the manager of a funeral home -- was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. … "Reverend Kimber has played a leadership role in all of Mayor DeStefano's political campaigns, [and] is considered a valuable political supporter and vote-getter." … According to the Mayor's former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because "[h]e's very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots."…
In other words, the plaintiffs in this case were victims of politics and preferential policies. A bare majority of the Supreme Court sided with them over New Haven's political class, the Obama administration, and Obama high court nominee Sonia Sotomayor.
But the Frank Riccis of the world can't count on the courts alone. The Ricci case exposed the extent to which anti-discrimination laws, intended to protect all Americans regardless of color or creed, can be used by the politically connected to discriminate. Lawmakers should take notice.
Comments
Leave a Comment
Melvin| 6.30.09 @ 7:23AM
Lawmakers will do nothing of the sort. Why should they? Affirmative Action fosters divisiveness, anger, and keeps the masses at each others throats thus enabling the lawmakers to be the puppet-masters of the races so to speak.
Darin| 6.30.09 @ 7:30AM
One big problem with the Supreme Court dissenting opinion is the fact that their reasoning references possible "past discrimination" as justification for enforcing discrimination.
In layman's terms, it means this. There may have been problems in the past. To address this, the same problems will be enforced in the present. The only difference is the color of their skin.
Just as blacks can be racist, whites can be discriminated against based on race. Dr. Martin Luther King envisioned a day when people would be judged "not by the color of their skin, but by the content of their character." Four Supreme Court justices are telling Dr. King to pound sand.
Ryan| 6.30.09 @ 8:01AM
What the decision helps do is put a hole in the requirement of Title VII for "diverse outcomes," probably the worst part of the act.
Most businesses aren't that stupid anymore. From what I read, the department MAY have used a poor test in the matter, but it doesn't mean that the results are invalid, it means that everyone but the firefighters screwed it up.
Of course, when your house is burning, you're not all that concerned with who puts it out.
Robert Rosencrans| 6.30.09 @ 8:07AM
It is only too obvious that Sonia Sotomayor has no empathy for the white race, particularly when it gets in the way of racial gerrymandering promoted by leftist interests.
The most telling part of the decision came from Justice Scalia who wrote the obvious:
I join the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?
Within the Kennedy decision is buried this gem:
At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results -- which IOS would use to develop the examinations—would not unintentionally favor white candidates.
This is how equality is being respected in America. It's being shaped by racists behind the scene, who rig every opportunity to have a racially desired outcome, therefore chemical (DNA) predestination.
Remember this, collectivism and racism go hand in hand. And that is precisely why these issues continue to surface. The New Deal launched an age of collectivism in America, a country who still hasn't learned a valuable lesson.
http://freedomkeys.com/ar-racism.htm
Racism is the lowest, most crudely primitive form of collectivism. It is the notion of ascribing moral, social or political significance to a man's genetic lineage -- the notion that a man's intellectual and characterological traits are produced and transmitted by his internal body chemistry. Which means, in practice, that a man is to be judged, not by his own character and actions, but by the characters and actions of a collective of ancestors.
Racism claims that the content of a man's mind (not his cognitive apparatus, but its content) is inherited; that a man's convictions, values and character are determined before he is born, by physical forces beyond his control. This is the caveman's version of the doctrine of innate ideas -- or of inherited knowledge -- which has been thoroughly refuted by philosophy and science. Racism is a doctrine of, by and for brutes. It is a barnyard or stock-farm version of collectivism, appropriate to a mentality that differentiates between various breeds of anmials, but not between animals and men.
Like every form of determinism, racism invalidates the specific attribute which distinguishes man from all other living species: his rational faculty. Racism negates two aspects of man's life: reason and choice, or mind and morality, replacing them with chemical predestination.
Roy| 6.30.09 @ 9:44AM
Re: Ryan:
You mean you're not too concerned with the skin color of who puts it out. You're EXTREMELY concerned with the qualifications of the people who put it out.
Anthony| 6.30.09 @ 9:53AM
In the Ricci case, we finally have proof positive that the elite Left in this country sees invisible language in statutes and the Constitution itself. The patently obvious discrimination under the plain language of the 1964 Civil Rights Act could be discerned by a 9 grade civics class.
However, Sotomayor and the 4 Leftists on the Supreme Court saw language that said the Act applied only to select groups of Americans. It's the new American paradigm. Sorry white guys, as Ginsburg opined in her dissent, while I have sympathy for you, I've no justice to give to you, you all are SOL. While Obama is redistributing wealth, the courts are redistributing justice.
Rome was ultimately destroyed by the barbarians, America will be destroyed by the Leftist Elites, unless we take action now.
Happy 4th of July. Time to reflect on its meaning!!!
PolishKnight| 6.30.09 @ 10:33AM
The "fear of litigation" rational for anti-white-male discrimination is laughable since the courts would never have tolerated it applied the other direction. For example, what if a security firm profiled black customers to avoid being sued for not sufficiently preventing shoplifting and protecting customers? Would the courts care if this profiling worked?
The reverse-discrimination rationalization argues that white males deserve to be discriminated against, because of their collective guilt irrespective of individual innocence, because of the actions of white males in the past who performed racist acts against groups irrespective of individual innocence (nevermind that racism is not solely a white male offense, historically.) It truly is just reverse discrimination, in name and deed, and no different than the normal kind other than it's blatant hypocrisy.
But even that shallow rationalization is no longer sufficient for cases where no such discrimination ever existed to begin with. Immigrant Latinas have no such claim for victimhood and neither does half-white presidential candidates whose ancestors were never American slaves. So now the cause of "diversity" is used which basically means that racism against white males will exist, forever, because it makes everyone else feel good. O'Conner's "empathy" for white males by saying that maybe reverse-racism will end once racism no longer exists is a laugh since as long as there are white males, diversity will demand that racism be perpetuated. Only when white males no longer exist will there be an end of racism, against white males at least.
In conclusion, the 1964 civil rights act was racist, hypocritical, and unconstitutional (violated equal protection rights) and should have been thrown out at the time.
Dustoff| 6.30.09 @ 10:51AM
As a fire fighter myself. I'm glad to see this case went the right way. Good news for my brothers who work hard to get there.
Yet I have to ask, when others think that people who can't or wont study their butts off for a command job should still be moved into that job.
In bussiness if your boss is not that good, the biz fails.
In my field where a commander must know what he's doing because (we or others will die)
It makes a BIG difference.
Michael Tomlinson| 6.30.09 @ 11:21AM
Excellent article Mr. Antle.
The Republican appointed justices on the Supreme Court have kept alive Dr. King's dream of a color blind society despite Democrat racism. They've also sent a message to Barack Obama and the racist Democrat party that their bigotry and hate-filled ideology may love the "Reverends" Wright and Kimber, but these home grown "Mugabes" won't find sympathy with the Constitutionlists on the Supreme Court.
Anthony Democrats are the barbarians!
WJ| 6.30.09 @ 11:23AM
I guess I shouldn't be, but I am still amazed that there were 4 justices who thought that Ricci should lose.
4 Justices think it is ok to discriminate against people based on the color of their skin in the most blatant and obvious way.
Paul from SA| 6.30.09 @ 11:35AM
This supreme decision will place a spotlight on all of Sonia's future opinions regarding race. And when she votes in favor of legal racial discrimination (against whites), we will all be shouting, "We told you so."
Actually, she should be required to recuse herself from all cases that involve race and sex (gender). We already know she favors females. Which color does she favor if it was Asian vs. Black?
Has anybody else noticed the liberal media has made a supreme effort to make sure that all pictures and videos of her always show her smiling?
WilliamInWien| 6.30.09 @ 12:06PM
While I applaud the outcome, I wonder about the citizens of New Haven who elected this mayor for seven terms and most probably wants seven more!
Oldefarte| 6.30.09 @ 12:12PM
This is nothing more than political EXTORTION, and it is going on all over the country. In my hometown, white firefighters sued [and won a huge settlement] the city and the fire chief over similar issues; and in the Duke soccer/assault case against the white athletes, the same political extortion issues prevailed. When are Americans going to WAKE UP on what is happening in this country? Discrimination [educational] ended with Brown vs. Bd. of Ed. in 1954, and all races attending public schools have the SAME buildings, teachers, textbooks, computers, etc. There are no more EXCUSES, and these preferential treatments given to blacks currently is ludicrous, discriminatory, and SHOULD BE illegal!!!!!!!!!!!!
HotPat| 6.30.09 @ 1:10PM
White is a color.
Sue| 6.30.09 @ 2:21PM
PolishKnight: You're right; Title VII was discriminatory on its face and should have been stopped cold in its track; when you've been on the receiving end of discrimination because of your "color" (black or white) it's a pretty big bone to swallow. The past injustices were committed by people in power. Is believe it's the power structure that should pay the price - a lottery of Congress's seats and replace the whites with blacks; then a lottery to replace the males with females. Then onto the higher institutions of higher learning; then the bureaucrats. The howls could have been heard all the way to the moon. As Boxer said, "I earned that title," but other white males didn't, to them. Somehow, they think that everyone but them steals, lies, cheats, etc. to attain their dreams.
The Supremes missed a golden opportunity to identify discriminatory outcomes with power; and personal prejudices with education. When you're invited by government to participate in a "promotional examination" you do so with the anticipation that the powers-in-charge will be fair, honest, impartial, and supportive of your constitutional rights of equal protection.
By denying promotions based upon race or gender because the powers want a different outcome is contrary to our American way of life.
I'm quite afraid that our educational system is teaching the opposite.
Mason| 6.30.09 @ 2:45PM
What kills me about the liberal mentality is that for white individuals to be ok with affirmative action legislation, we must feel guilty for something the vast majority of us had absolutely nothing to do with. Only then are we ok with this type of disparate treatment. Therefore, my feeling is and has always been that liberals don't want equality, b/c if they did, their preachers, politicians and public figures would preach forgiveness and ACTUAL equal opportunity. This leg up minorities clammer for only hurts their cause of legitimacy in the work place and it only fuels resentment among those that must now climb over an extra hill to get where they want to be b/c it is no longer that I must succeed based upon my God given abilities, but rather I must succeed with my God-given abilities and pray that no black person is competing for a similar job or position. What is also unfortunate is that african-americans have become so accustomed to accepting the leg up, that they almost don't believe they can do it on their own and frankly that is a sad mind-set, a defeated mind-set to live with.
Chris| 6.30.09 @ 3:14PM
Now that we have a black president and a Female Hispanic Justice chose because of her gender and ethnicity rather than qualifications...the liberal ideology is exposed as un-necessary and racist in its rawest moment yet.
It was one thing for affirmative action to happen by guilty whites....that guilt is nobless oblige...soothing the wounds and injustices of the past by the majority.
However, affirmative action under while blacks, women and hispanics are in power...comes down to little more than tamany hall style power grabs...that there need be no guilt associated with fight raw power grabs.
If one looks at the statistics, boys are failing compared to girls and the massive waves of immigration are destroying white middle class and white poor....and as if the anti-male bias, anti-marriage bias, anti-husband bias, father bias, anti-white bias were not enough one need only look at the anti-christian bias that plagues our nation.
PolishKnight| 6.30.09 @ 3:32PM
One of the cutest parts of the the everyone-but-white-males-gets-goodies game is that everyone in that class is equally entitled to victimhood. I commonly heard young, upper-class, white women on college campuses compare their historical suffering to that of descendants of black slaves who lived in the Jim Crow era south. It was so laughable since these same women turned around and griped that there were no good men left who earned twice as much as they do and held open their doors.
In other words, nothing about the decision, and the media's reaction surprises me: I've known all along that this was a cynical, hypocritical power grab. Let's hope that the chumps like those who voted for Murtha (who called them ignorant racists) will see the light of day after this. I don't have my hopes up though.
Richard Baker| 6.30.09 @ 4:40PM
One thing for sure. When the Revolution, or should I say Restoration occurs, the whiners and losers will be easy to spot. They'll be the ones screaming about their being a VICTIM! It'll make target selection easier.
Julio| 6.30.09 @ 5:05PM
Let us pray for our conservative Justices Scalia, Thomas, Alito and Roberts, who have sustained our Constitution throught this Neo-Socialist movement that has taken over our government. Let us pray for their health in the fervent hope that they survive this onslaught and when Comrade Barack gets defeated in 2012 new conservatives justices be appointed to continue the battle towards the old American values, virtues, and freedom.
Brian Richard Allen| 6.30.09 @ 5:06PM
"" Four ("Democratic" party political activists in "judge" costumes) are telling Dr. King to pound sand. ""
But Doctor King was an (abjectly-and-systemically "Democratic"-party-politicized) FBI-harrassed Republican.
And, after all, what would we War-Between-the-States, Democrats and Dixiecrats-and-that gang's Ku Klux Klan-fighting, lunch-counter integrating, colored-folks-assisting, Civil-Rights-passing Republicans know about the content of a "Democrat's" black hole .... um ... I mean, "character?"
Hmmmmmm??
Brian Richard Allen
Los Angeles - Califobambicated 90028
And the Far Abroad
Anoni| 6.30.09 @ 6:37PM
The US Postal Service does this on its tests (or at least it used to): If you are a member certain groups of people, you get 5 points more automatically - so someone can actually score better than another person, but because the other person got 5 points extra by virtue of belonging to a certain group, they get the job. Maybe now they need to go after the USPS.
Floyd R. Turbo| 6.30.09 @ 6:50PM
Most of the pundit class have missed a key point in the Ricci decision: Justice Alito's delivered a haymaker against "sympathy" and it has flattened the "empathy" gibberish peddled by our 47 year-old Flower Child of a prezidunce, the "professor of constitutional law" who probably couldn't getcha out of a parking ticket. Suddenly he and his Latina woman nominee ain't lookin' so "wise."
hexheads| 6.30.09 @ 10:27PM
i don't give a hoot if the firefighter is purple skinned.
it is a SKILLED position.
that SHOULD BE the issue, not skin color.
if the tests get dumbed down as tests and hiring and admission criteria have after title VII, then get yourselves lots and lots of fire extinguishers!!
and don't expect cops to be able to protect you either.
lots and lots of guns (before the pres gets his way)!!
DaveS| 7.1.09 @ 7:02PM
Let the minority candidates apply for admission to UMichigan Law School. There, the SCOTUS approval of an unvarnished tilted system would work to their advantage.
mk48| 7.1.09 @ 8:28PM
Thanks. Its very interesting.
Marc Jeric| 7.2.09 @ 4:59AM
Judicial opinions of Ginsburg are well know by me in advance - you see, for two reasons:
1) as a refugee from a communist country I am well versed in the revolutionary marxism; and
2) she was General Counsel of the ACLU, formerly the legal arm of the Communist Party USA.
Richard Baker| 7.2.09 @ 11:26PM
Hotpat:
I was taught in elementary school in the '50s and '60s that white is the absence of all color and that black was the inclusion of all colors in the light spectrum.
SEN. CLYDE BUTKNUCKLE| 7.3.09 @ 2:18AM
The black firefighters in this case really were the victims....of affirmative action. According to the affirmative action rule book, if you're of a protected class, you don't really have to win - all you have to do is get close. Your protected status as a victim will put you over the top. There was no way for these guys to know that, for once, this 40+ year old rule would not apply. They didn't study as hard as the winners for if they had, there would have been no controversy.
June| 7.4.09 @ 1:23AM
Sotomayor is very racist against whites. She brags about being a Puerto Ricans Puerto Rican. I only hear Rasisam against whites and have wondered why nothing has changed in the last 40 odd years until Obamas friend , Rev Wright let the cat out of the bag and confirmed that this is what is being taught in schools and churches like his. Do we have to wonder where Obama gets his ideas to tear our nation apart anymore with "friends" like his?
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