As one who is critical of racial preferences, I'm surprised to find myself disappointed in the Supreme Court's 5-4 decision in Ricci v. DeStefano, a case involving a group of mostly white firefighters in New Haven, Conn. They alleged "reverse discrimination" after the city threw out a promotion exam because too few minorities scored high enough to earn promotions.
I oppose racial preferences because they hurt who they're supposed to help by lowering standards, stigmatizing beneficiaries, masking educational deficiencies and creating a spoils system that rewards the few without improving the lot of the many.
Still, I don't subscribe to the paranoid fantasy that whites are systematically discriminated against similar to how African-Americans, Latinos and other minorities have been treated. My heart goes out to those who believe this. But I can't get my head to go along. The numbers don't bear it out. If the argument is that white people aren't getting into Princeton because they're white, what happens to that reasoning when we do a headcount of the student body and find plenty of whites who got through the closed door?
In Ricci, I might be more sympathetic to a claim of reverse discrimination if the plaintiffs could cite a pattern where no white firefighters had ever been promoted. Quite the contrary. You can bet that most of the people hired and promoted over the years by the New Haven fire department have been white. In fact, according to legal experts, the fire department has since 1972 been successfully sued several times for alleged racial discrimination against black firefighters.
Another concern is that it's not every day you see five conservative justices — the sort beholden to an ideology that rails against "judicial activists" — morph into Exhibit A. For all the angst about whether Supreme Court nominee Sonia Sotomayor would make law from the bench, that's exactly what the five did here.
By contrast, when Sotomayor and two other judges on the 2nd U.S. Circuit Court of Appeals upheld a lower court ruling last year supporting New Haven, they were following both the law and legal precedent — specifically, Title VII of the 1964 Civil Rights Act barring racial discrimination in employment, and a 1971 Supreme Court decision that an employer can be liable for discrimination if an employment practice (i.e., a promotion exam) has a "disparate impact" on minorities. That's the lawsuit the city attorneys in New Haven feared was coming their way given that the exam had a disparate impact on black firefighters.
Not good enough, said the justices. Writing for the majority, Antonin Kennedy called scuttling the exam "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" law.
With that, the justices brushed aside more than 35 years of legal precedent about disparate impact in racial discrimination cases and, as several critics noted, made new law — a job best left to Congress. They also probably confused the heck out of New Haven officials, who catch flak no matter what they do.
According to a civil rights lawyer, the problem with the court's reasoning is that it "completely ignores the context" of why New Haven acted as it did. "Here you have an industry that historically and notoriously was essentially a set-aside for white men for generations," said Matthew Colangelo of the NAACP Legal Defense Fund, which filed an amicus brief on the side of the city of New Haven. "And in fact when Congress extended Title VII to cover cities and municipalities in 1972, they singled out fire departments as among the most egregious discriminators. You also have, in New Haven, a long history of excluding African-Americans, Latinos and women from employment. So you can't look at New Haven's decision to set aside the test as if it was made in some vacuum."
That makes sense to me. But probably not to Americans who, already on edge due to changing demographics, think the New Haven firefighters — and the Supreme Court — speak for them as they try to hold on to what they have.
Navarrette's e-mail address is email@example.com.
THE SAN DIEGO UNION-TRIBUNE