Monday, June 29, 2009

Why Today’s Supreme Court Ruling In Favor of “The New Haven 19” Could Turn The Clock Back On Minority Economic Gains

Today, the U.S. Supreme Court ruled in favor of 19 white fire fighters and one Latino fire fighter in their lawsuit against the city of New Haven Connecticut. The case stems from a 2004 lawsuit filed by white firefighters who passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

City officials said they wanted to add diversity to the management ranks within the fire department. But when no blacks and only two Hispanic applicants qualified for consideration for the management jobs, the city decided to scrap the entire test. So the white firefighters sued charging that the city violated Title VII of the Civil Rights Act by discriminating against them solely because they were not black—the court agreed.

While the Supreme Court’s ruling might help fuel conservatives´ opposition to supreme court nominee Sonia Sotomayor (as today's decision in Ricci v. DeStefano ruled against an earlier ruling Sotomayor upheld as an appellate judge) I fear this case will have a wide-ranging negative impact on anti-discrimination employment—especially in Government which has traditionally been a bastion for minority economic development. Think about the “good jobs” of the past: teachers, postal workers, city workers, county workers, and Federal workers. The only equal for minorities were factories and the mills. Now look at today, those factory and mill jobs have all but dried up, making Government employment all the more important for minority economic parity. If affirmative action programs are abandoned and Government goes the way of cooperate America, fewer minorities will be hired or promoted to high-level Government positions—regardless of how well they do on some “objective” test or process. How could I say this? More on why later, but first, some background.

The first reverse discrimination law suit reached the U.S. Supreme Court in the 1970s when a white student named Allan Bakke accused the University of California medical school of twice denying him admission because he was white. In their decision, the Supreme Court ruled that strict racial quotas were unconstitutional but affirmative action was not. In the years to follow, the cases continued to mount, especially as minorities and women began to get climb the economic ladder.

In April of this year in South Carolina, the U.S. Equal Employment Opportunity Commission sued a historically black college on behalf of three white faculty members who complained they were forced from or denied jobs because of their race.

Simultaneously, federal officials reached a settlement agreement with Benedict College paying $55,000 to each instructor, including an art teacher who said she was denied promotion in favor of a black professor.

And there have been other Governmental cases:

Michael C. Ryan v. Norman Y. Mineta (FAA). On October 6, 2004 -- after nine years of litigation and hearings, Federal Judge John W. Bissell found that the FAA had, in fact, illegally discriminated against white employee Ryan via the agency's zealous racial-quota hiring and promotion policies.

Larry Price v. HUD. The HUD St. Louis office denied promotions to Larry Price because he is white and male. Mr. Price won in Jan. 2002.

Joseph Ray Terry vs. EEOC. EEOC found guilty of reverse discrimination! White EEOC employee wins lawsuit.

Diersen vs. U.S. GAO. U.S. General Accounting Office discriminates against its older employees, especially those who are white and male! Lawsuit pending for discrimination and retaliation. Agency downsizing disproportionately affects older, white males. (UPDATED 12/17/04)

IRS found guilty of reverse discrimination and retaliation against employees! (Updated 04/22/99)

FAA -- Air agency rejects highly qualified, disabled, white veteran DeWayne Currier. FAA says air safety is less Important than skin color. (Updated 12/30/98)

INS Fires Disabled Jewish Woman. In Caryl Leventhal v. Janet Reno; Caryl B. Leventhal worked for the Immigration and Naturalization service (INS). Caryl is white, she is Jewish, and she has multiple sclerosis. Black INS employees insulted and discriminated against Ms. Leventhal for her race, religion, and medical condition.

Yet, there were no major rulings to Governmental affirmative action programs—until today. Why is this so important? I would dare to say that the Government (County, State, and Federal) is by far the principle provider of higher paying jobs and advancement opportunities for minorities. According to the Office of Personnel Management, the Federal Government’s rate of employment of all minorities ranged between 29 percent in 2001 to 32 percent in 2006—far above minority population levels. If these opportunities are lost due to a “fairness issue,” it could set minorities back 100 years. Many conservatives argue to the contrary.

Whites, especially white males, say that affirmation action is no longer necessary and that instead of leveling the playing field for minorities, it unfairly punishes whites. Let’s examine this argument. First, I challenge the idea that affirmative action unfairly punishes whites and does not level the playing field. I would agree if it weren’t for one simple fact: the “old boy” network and “white privilege” still exists. Are whites being unfairly punished? Some…maybe. The majority of CEO’s are white, the majority of business owners are white. Time and time again studies have revealed that whites receive better treatment from everything to loans to catching a cab. So, while some whites may not get the job they think they deserve, this is not the norm for them—for minorities, it is.

And here’s something to think about. Could it be that the election of the nations first African American President will only strengthen the dismantling of affirmative action? My answer, could be. It’s exactly because you now have an African American President and Republican Party Chairman—both firsts the history of this nation. You also have a good number of African American professionals. Because of this, some would argue that affirmative action is obsolete. You also have a President who’s big a advocate of personal responsibility and has called loudly for the same saying Government can not and should not do it all. How will he be balance these proclamations with the needs of minorities in a still racially divided America? and still be the President for all the people?


Elizabeth Barrette said...

Racism is a serious problem. Affirmative action is one tool in fighting racism.

If a company is looking to diversify, they should just say so and seek qualified people on that basis.

However, if a test is used, it should be as fair as possible and people should abide by the results. Otherwise the test is a sham and people will be justifiably upset.

This is a reason why testing is not always a good idea: if you know you want a woman, a person of color, etc. for the position then there will be trouble if the test scores don't match your agenda. It's okay to pick for variety.

Dee said...

I continue to struggle to understand the guidelines that establish discrimination, especially having read Whitewashing Race not long ago. The authors of this book argue that when minorities claim to experience discrimination, that they have to go above and beyond proving that discrimination was done with malicious intent. In the court decisions you mention, the white plaintiffs typically blame the action on some quota system.

I haven't read the briefs. Some of the more invidious snapshots, I won't defend. But what about quotas? How did they prove that a quota was in place? Were minority employees paid and promoted differently?

I ask because I would like to know the burden of proof whites must go through to make similar charges.

Anonymous said...

"If these opportunities [read, affirmative action"] are lost due to a “fairness issue,” it could set minorities back 100 years."

I hope you realize what you wrote. - Oh no, if things are actually fair, blacks are screwed! - White gave an more than an inch, blacks took a mile and have never stopped wanting more.

Iam Robert said...


Yes, racism continues to be a problem in this country. And while I agree affirmative action is one tool to fight it, there are drawbacks. First, anytime there is an "objective" system in place and exceptions are made, its unfair. Yet one must remember that if the playing field were level in the first place (and not just for African Amercians but all minorities and women too) then there would not have been a need for exceptions to the system, i.e. afffirmative action.

You hit on a key point in the Supreme Court decision and that is that New Haven should have thought the process out more instead of taking an arbitray exception based on the fear of suit later.

And no test are not always a good idea for promotion in and of itself.

But, in light of all this, what does one do? How can we ensure everyone gets a fair shake without hurting someonee else?

You tell me.

Thanks for visiting and blessing us with your insights. Please keep reading and if you don't mind, become a follower!

SweetIceT said...

I agree the affirmative action is still a necesaary tool to provide equal access to equal employment in this country. As long as the 'good old boys' networks, there will be a need for affirmative action. While we have come a long way to break down these barriers, we still have a long way to go. This is not to say all employers discriminate; those who are in positions to make hiring decisions are male and in the majority often make decisions on familiarity - the exec see himself in that young man sitting across the desk from them so it's only natural for that exec to want to give that young man the same opportunity giving to him years ago. It's difficult for women and minorities to establish that familiarity and overcome such an unconscious, yet powerful, rationale. Also, if you make the rule and there's no 'ump' or 'ref' to call 'foul', you can fix the game so you can win. So affirmative action can be used as a tool to break that cycle and level the playing field.

Iam Robert said...


Great question! Here's my (although long) answer.

In employment, Affirmative Action is the set of positive steps that employers use to promote equal employment opportunity and to eliminate discrimination. You mentioned quotas. One of the basic tenants of Affirmative Action, as stipulated in President Lyndon Johnson's Executive Order 11246, sought to ensure that individuals have equal opportunity WITHOUT regard to their race, sex, or ethnicity. In this 1965 Executive Order, President Johnson consistently and repeatedly used the term non-discrimination and never once mentioned racial quotas or preferences. That is where the evidentiary proof cited in this case came from—an attempt to establish a preference for one race or another.

In this particular case, New Haven established and advertised a promotion system it thought was fair to all. They did this to increase diversity in their management. But, when minorities did not fare well on the test, they scraped it. This was clearly in error on two fronts. I applaud their desire to increase diversity in their management ranks; they clearly rushed to judgment both in using a test as the ‘sole’ predictor of advancement and recalling the test due to a threat of reprisals from their African American fireman. They set a standard and then violated their own standard just to hire—that is discrimination, no matter who it favors. And so it is with all these cases, the plantifs were able to prove that those hired were hired simply because of their race or gender or not hired because of it. This violates the tenants of Affirmative Aciton which simply seeks to lower the stumbling blocks monirities and women have had in gaining employment and advancement. It’s a fine line, but one we tread until a better system is created.

My advice, don’t seek to hire anyone group—seek to remove as many hindrances as possible (race specific test questions, economic standing, friendship, organizational membership, culture, gender, etc.)

Thanks so much for visiting and commenting. Please keep reading, commenting and asking questions.

And please follow this blog--we need your insights.

Iam Robert said...

That's just the point; things are not fair and have not been since this country's inception. After all, how can someone "discover" a country that is already occupied by a people? Theologians, scholars, administrators, politicians, “Joe Six-pack,” and “Bro-man” realize that in America there is a thing such as white privilege, racism still exists, and there is still a glass ceiling for women. Are you saying that racism no longer exists in this country? That racial profiling does not exist? The customer profiling in stores does not exist? That sentencing laws in this country are not biased? Affirmative Action, as I’ve clearly stated, is not intended to be one of these, but to find as objective a way as possible to allow all to share in this country’s resources—especially in finding a job and going to school.

In these tough economic times, I can see how some would feel put upon. And, as I have shown, attempts at applying the concept of Affirmative Action have gone awry. So, in something we do agree, discrimination, IN ANY FORM, is wrong. However, casting blame on someone else when one can’t cut the mustard is also wrong. Equally wrong are those who do not take personal responsibility and make the right choices to get ahead in life. In my years, I have not found those tendencies to be color specific, have you?
Also, your comment would seem to indicate that NO minority or woman could compete with a white male. Surely you don’t mean that. I’ll match my mental sinews with the best of them—I have a good education, a good job, and good friends (many of them white). No one gave me any of them—I earned them.
So, here’s my question to you. How do we put a fair system in place in an unfair and unequal world?

Iam Robert said...


Now you're on to something! You see that the whole concept of Affirmative Action is not to choose a group, but to choose a system that does not exclude anyone.

Great point!

SweetIceT said...

Anonymous, African Americans want what everyone else wants - equal access to equal opportunity. Most African Americans don't want a hand-out (usually too many strings attached) - just a hand up!

Iam Robert said...


Well said. You know, I've heard the “blacks wanna get over" spiel on many occasions. What many fail, or simply refuse to realize are all the contributions African Americans have made to this country. And did I mention that America is a nation of immigrants?

Again, its time we seek solutions and not rhetoric or blame. Maybe Affirmative Action is the answer to achieving resource equality--the ISSUE is what is?