Discrimination is not the way to fight bias

The U.S. Supreme Court set some important limits on discrimination Monday — prohibiting reverse discrimination against one group of employees in the name of preventing potential discrimination against others.

The case involving New Haven, Conn., firefighters gained national notoriety because it highlights a ruling by Judge Sonia Sotomayor — President Barack Obama’s nominee to replace retiring Justice David Souter on the Supreme Court — and two other appeals court judges.

The Supreme Court decision this week overturned the appeals court ruling, which was a troubling decision and one of the reasons Sotomayor has justifiably been attacked by critics.

For one thing, the three judges on the appeals court did not explain their decision in any detail. They simply wrote a few paragraphs rejecting the claims of the white firefighters and referred to an earlier ruling by a trial judge.

That should be unacceptable in a case of such importance, and one of their fellow appeals court judges said as much in his dissenting opinion.

No doubt Senate critics will use Monday’s ruling against Sotomayor when she appears for confirmation hearings next month.

But the Supreme Court ruling carries far more impact than in how it affects Sotomayor’s nomination.

In the New Haven Fire Department, applicants for promotion were required to take a test to determine if they qualified. Some, such as lead plaintiff Frank Ricci, studied intensely and scored well enough to be promoted.

Trouble is, those whose scores were high enough to qualify for promotion were predominately white, with a couple of Hispanics also making the grade. None of the city’s black firefighters scored high enough for promotion.

So, fearing a potential lawsuit from black firefighters, the city simply threw out the test results.

Nice job, Mr. Ricci and the rest of you who scored well. But all your effort was for naught.

Yes, you played by the rules we established, but you can’t have the promotion you deserve.

The five-member majority on the high court said that action violated federal law.

“There is no evidence — let alone the required strong basis in evidence — that the tests were flawed,” Justice Anthony Kennedy wrote in the opinion for the majority.  He also said, “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.”

Justice Ruth Bader Ginsburg, writing for the minority, said Monday’s decision does great damage to the goal of creating equal opportunity “in fact, and not simply in form.”

But to accept that, one has to believe that the white and Hispanic firefighters who performed well on the test didn’t deserve the promotion opportunities they achieved in taking the exam simply because no blacks performed equally well.

Monday’s decision was a welcome one for fairness and common sense on the very difficult issue of what constitutes discrimination and reverse discrimination. How it will affect Sotomayor’s nomination is anybody’s guess.


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