The Death of Affirmative Action?

We are getting news today that the Supreme Court has ruled on the infamous New Haven Firefighter reverse discrimination case.

Supreme Court nominee, Judge Sonia Sotomayor, in a strange coincidence, was one of the presiding judges during this case’s original appeal.

The High Court has ruled in favor of white firefighter Frank Ricci, reversing Judge Sotomayor’s ruling.

As most of us are aware, the New Haven firefighter case was about whether or not Mr. Ricci was unfairly discriminated against when he passed (with flying colors, I might add), the city of New Haven’s standard test, the results of which determined one’s eligibility for promotion within the department.

Ricci, unfortunately, did not get the promotion, because just after taking the test, the city threw out all test results because no eligible black firefighters (and only one Latino) had passed it.

The city’s defense was that they were following applicable federal law- Title VII, if you want the name for it- that prohibits an employer’s discriminating against any race in its hiring or promotion practices. Even if the discrimination is not purposeful, it is still illegal, according to the law.

When Ricci initially brought suit against New Haven, he lost, and the trial judge ruled in favor of the city.

Not to be deterred, he appealed the ruling at the federal level, where it fell into the lap of Judge Sonia Sotomayor’s federal appellate court. Sotomayor (in a unanimous decision, reached along with the two other judges on the panel), upheld the trial court’s decision, ruling in a depressingly brief statement, that the applicable law- love it or hate it- had been appropriately applied.

Ricci then asked the U.S. Supreme Court to hear the case. The High Court has spoken, and Frank Ricci is likely a very happy man.

I have had feelings that were difficult for me to reconcile about this case from the start.

I do not fault Judge Sotomayor in her decision, as she was merely charged with determining whether or not New Haven had been on the right side of the law when the city decided to throw out the test. Simply looking at legal precedent, New Haven’s officials acted the way the Title VII statute requires them to.

This case is a true eye-opener, and is a symptom of the challenges that can develop as a result of changing times.

In the not too distant past, reverse discrimination was a myth. It was an excuse used by lazy white people who did not have the education or the drive to get a real job and go to work. This country, at that time, was so terribly stacked against minorities that the notion that white people could possibly be victims of discrimination was absolutely ludicrous.

Now, however, things are different.

We have multiple laws- both state and federal- protecting workers from discrimination. These laws cover everything from gender to sexual orientation, from race to religious background. Not only are these laws on the books, they are actively in use. We have affirmative action- require some organizations to hire certain percentages of minority workers; we have colleges and universities that give preferential treatment to qualified minority applicants over equally qualified white candidates who apply for admission.

I have never been against affirmative action, as in my lifetime I have seen a real need for it. These laws, these practices, in my liberal mind, have always been my definition of reperations, the much-needed apology of a nation who has done dastardly deeds to minorities for centuries.

Today, however, I am conflicted.

Make no mistake- I am not so naive as to believe racism or (and perhaps especially) discrimination is dead. No, I still see evidence of it in my day-to-day life, and I am as appalled by it today as I ever was…

… But something has changed in this country.

The change is called progress.

No longer do we, as minorities, live in a nation where reverse discrimination is a ridiculous figment of certain people’s imaginations. On the contrary, we have made enough progress, moved far enough forward that reverse discrimination has become a real problem.

This case never could have happened had we not successfully begun to level the playing field.

For that fact alone, I am quite proud of my country today.

Make no mistake- we aren’t there yet.

There are still companies that will find silly and illegal reasons to keep from hiring a black man. 

Or a woman.

Or a Muslim.

Or a homosexual. 

… And apparently, in some cases, even a white person.

It is important to remember this fact, and to continue to fight against discrimination in all its forms. Companies still need to be held accountable for their hiring and promotion tactics, ensuring that they are not excluding anyone from realizing their true potential and achieving greatness.

The enemy here is, and always has been, discrimination.

We must be careful that we are not missing the forest for the trees. As Americans, we are the best- perhaps in the world- at doing just that.

It is discrimination we fight, and we fight it in all its forms.

Frank Ricci, while yes,  a white guy, is a man with dyslexia and other learning disabilities.

He dedicated himself most thoroughly to passing the test administered by the New Haven fire department; a man who worked harder than probably anyone else to earn this promotion… quitting his second job so that he would have more time to devote to studying, spending large amounts (approximately $1,800) of his own hard-earned money on study materials and even hiring a tutor to come and read the materials to him, as his learning disabilities were so great, he could not have gotten through all of it on his own.

Some say the fact that Ricci had the resources to take such extraordinary measures to pass the test constitutes a bias. Simply put, not everyone has the luxury of quitting their second job, buying extra study materials, and hiring tutors to help prepare them for an upcoming test.

I agree, to an extent.

However, what I have not seen mentioned, at least not as point of fact, is that most people do not suffer from the learning disabilities Ricci has either.

How many of the other candidates had the unique challenge of overcoming dyslexia in order to prepare for and take this test?

Ricci went the extra mile, and in doing so, I believe he merely leveled the playing field.

He did not have an unfair advantage- in fact, he had a significant disadvantage- but rather than fall victim to the fact that he came to the starting line handicapped, he found away to overcome his disabilities.

This man was dedicated, he refused to let his shortcomings deter him. He found a way around his own handicap, and he knocked it out of the ballpark.

Since when is hardwork, creativity and digging up helpful resources not worthy of reward in this country?

He deserves his promotion.

Discrimination, in all its forms, is ugly.

Whether the victim is black or white, gay or straight, man or woman, Christian or Buddhist, learning disabled or not.

The goal is to create a level playing field, not to give minorities a free pass over all else.

It is because we are charged with fighting discrimination in all its forms that we should not be in support of hiring or promoting practices that tip the scales in the opposite direction either, causing a new group of people- fellow humans- to miss out on hard earned- and deserved- opportunities.

Regardless of race.

Past injustice does not constitute an excuse to inflict future injustice.

So…

… Today the Supreme Court ruled in favor of the white guy in a discrimination case, and strangely…

I’m ok with that.

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4 thoughts on “The Death of Affirmative Action?

  1. Hey there DL-

    Good to see ya around here!

    The basis for my conflict was that I had to really wrestle with some of my own inner demons- as a minority- in order to be completely honest and accept the fact that I support the Supreme Court’s decision.

    Because of my personal life experiences- experiencing discrimination first-hand, fearing the consequences of racism my own children will likely suffer, and watching other minorities (people who I love dearly- black and gay friends/family members) suffer the results of discrimination- my first instinct was to disagree with the High Court.

    Beyond that, I believe that both the white firefighters who passed the test and the black ones who didn’t, had a legitimate beef.

    Usually when an issue sparks my interest, it is easy for me to pick a side. This case was different, and sort of fell into a gray area.

    I believe the New Haven test was biased. There is no other explanation for the fact that not a single black firefighter passed it. However, personally speaking, that fact doesn’t lessen the effort Frank Ricci put into passing the test.

    It is not Frank Ricci’s fault that the test was biased. He did not choose the content of the test. He was simply a firefighter who was willing to do anything he needed to so that he could pass it.

    His work should have been rewarded.

    I am conflicted because I don’t know what the true compromise should be in this situation. I am absolutely certain Frank Ricci should have gotten that promotion. I am equally certain that the black firefighters got a raw deal out of this mess.

    It seems to me that the hard workers- both the black firefighters and Frank Ricci- were completely screwed.

    How do we make it right? How do we reward Frank Ricci for his hard work without upholding a racially biased test? On the flip side, how do we tell Frank Ricci that despite his hard work, and through no fault of his own, he doesn’t get his promotion- and promote a minority, who while qualified, likely didn’t work as hard as Ricci did to pass the test (not saying black people didn’t work as hard because they’re black- I’m just saying from what I’ve read, NO ONE- black or white- worked as hard as Ricci did).

    It’s a tough case.

    I feel for everyone involved, and I guess I’m a little saddened by the fact that there was no proverbial “happy ending”- I wish we could have found a way to support the black firefighters and still promote Ricci.

    This case, to me, is simply a lesser of two evils kind of thing. At the end of the day, despite my dedication to seeing minorities succeed, I knew in my heart of hearts that this time, at least, the white guy deserved the promotion. Unfortunately, it looks like the black guys never even got a fair opportunity to even show whether or not they deserved it too.

    Love ya, and thanks for letting me rattle on!

  2. Thank you for this sensitive reflection.

    Might we introduce a new concept: that blacks need to learn to pass written tests!

    Our President has shown that blacks can be equal if they go to school and apply themselves to work.

    I am sick of blacks saying that it is proof of discrimination when they fail a written test.

    It is proof of discrimination. Proof that the attitude in many gang controlled communities discriminates against stayng in school.

    We must find a way to send the message that blacks must stay in school.

    1. Hi ngoldfarb-
      While I agree with a lot of what you said, you completely lost me with your statement that “blacks need to learn to pass written tests!”.

      Unfortunately, if we are committed to ending discrimination and having honest dialogue, we need to stay away from blanket, patently rude and ignorant comments such as that one.

      Otherwise, you certain do make some valid points.

      Our government has shown a strong commitment to ending discrimination in this country by adopting and applying the Federal Civil Rights Act of 1968, Affirmative Action and the Equal Employment Opportunities Commission.

      Not only have these laws served as invaluable tools to help level the playing field among minorities, women and whites, but I would even go as far as to say they serve as reparations for both slavery and Jim Crow.

      At some point the onus falls to the individual by way of personal responsibility. We have made a ton of progress of late, and this fact, combined with the tools available to help minorities succeed is quickly closing the racial gap.

      That is a wonderful thing to witness.

      However, it is now up to each and every person- black, white, pink or purple- to excercise the dedication, ambition, and all-out hard work needed to excel.

      It isn’t impossible for blacks to succeed anymore. The system isn’t yet perfect or completely color-blind, but every time a minority uses racism as an excuse to fail, considering all we have changed over the past 50 years or so, they are spitting squarely in the faces of all those who came before.

      People like Martin Luther King, Jr. gave their very lives so that individuals like my beautiful black daughters would have opportunities that he and others never had.

      In my family, personally speakin, failure is not an option. If my daughters choose not to excel in this world, it is their own fault, as they certainly have not learned that behavior from me.

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