Political Hay

Reversing Discrimination

The Ricci case shows what the politically connected can do to abuse anti-discrimination laws.

By 6.30.09

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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.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.