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Why The Supreme Court Got It Wrong

31 July 2009

I wrote this ages & ages ago, submitted it to Racialicious, and never heard back from them.

Here’s to betting that you think I’m more interesting than they do:

By now, I’m sure you’ve all heard about the Supreme Court’s ruling on the New Haven firefighters case. The city of New Haven threw out out the results of a test that had been commissioned to determine the eligibility for promotions among firefighters because not enough folks of color scored high enough to be considered for a promotion, and the city was  afraid of a Title VII lawsuit.

White firefighters who did well on the qualifying exam sued New Haven for what they claim was “discriminatory treatment.” Frank Ricci, the lead plaintiff in the case, has a particularly difficult story. He has a learning disability, and spent close to a thousand dollars paying his neighborhood to read the test materials out loud to him. God only knows how many hours he studied for a test that didn’t matter in the end.

No matter where your politics are situated in this conversation, you gotta feel for Frank Ricci. His situation just plain sucks.

On the other hand neither Frank Ricci, nor any other firefighter who did well on the test, was entitled to a promotion, or anything else. The qualifying exam, composed of a written portion weighting 60%, and an oral portion weighing 40%, was only intended to identity candidates that were eligible for promotion. That’s kind of like how getting a good score on the SATs might make you eligible for admission in the eyes of an university, but it does not guarantee you a spot. Applicants that passed the qualifying exam would have been put on a list to be reevaluated by other people, who would then, following the “rule of three,” fill each vacancy one of the top three scorers on the list, and so on. Simply being a top scorer isn’t enough to get you a promotion. You must have other compelling qualities to move ahead. And also much like getting into a top school, the application process can be a crap shoot, no matter how well you did on the SATs, and how much you deserve to get in. Frank Ricci can’t say with any degree of certainty that he would have been promoted had the test results not been cancelled. And, nobody who scored lower than him on the test was promoted ahead of him. So legally, it doesn’t look to me like any injury was done.

Although I’m not persuaded by the plaintiffs’ arguments (Ricci’s side), I am completely disgusted by the defendant (city’s side). For the city of New Haven to claim that there was no viable alternative to the test they used (their justification for canceling the test) implies that they made an attempt to look at the alternatives, when there was no evidence they did so. Fact of the matter is, New Haven had every opportunity to create a test that would accurately and fairly measure what’s really important – how well a person can perform the duties of the position in question, and they didn’t. I mean, does anybody think the best way to measure a person’s fitness to be a firefighter captain is to have him or her answer multiple choice questions? And really, who thought it would be a good idea to cancel the results of a test that tons of people have invested time, money, and their hopes in? While the test is clearly messed up – a multiple choice test that people of color don’t do as well on compared to whites hardly makes the news, these days, considering that describes almost every multiple choice test ever developed and implemented (SATs, anyone?) – and the results of said messed up test should not be allowed to stand, things never should have gotten that far.  The right people should have been brought in at the very beginning to develop a test that’s not racist. Period. This is not 1964. New Haven should get with the times.

What I find troubling, both in the language of the Supreme Court decision, and among online blogwars, is the idea that “discrimination” is some kind of race-neutral phenomenon, and that anybody, Black or white, can find themselves its unwilling victim. This, I think, ignores the sociohistorical context from which terms like “discrimination,” “racism,” and “injustice” took their meanings. Go back to the Civil Rights movement. Discrimination looks like Blacks and Hispanics who were unable to enter the firefighting profession until just recently because of the racism in the firefighting profession. How does trying to make sure that they have a fair and equal shot at promotions constitute racism?

Attempts to right past wrongs, to give people of color a chance in areas of social and public life where they never really had one, only look like discrimination to people who have a vested interest in keeping things just as they are.

– Shiyuan

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