(June 30, 2009) — New Haven, Conn., is a city in which African Americans and Hispanics account for nearly 60 percent of the population; yet, by order of the U.S. Supreme Court, the city must be served –"as it was in the days of undisguised discrimination — by a fire department in which members of racial and ethnic minorities are rarely seen in command positions."

 

Today’s ruling is deeply flawed and should not be the law of the land. In assessing claims of race discrimination, "context matters." Grutter vs. Bollinger, 539 U.S. 306, 327 (2003). In June 2003, the Supreme Court ruled against affirmative action in higher education admission decisions. In that case, Justice Ginsburg stated what was obvious to civil rights activists: The law ought to be able to distinguish between the use of race to include a historically discriminated against racial or ethnic group and the use of race to exclude. Despite her instruction, we have not learned the lesson.

 

Context does matter. Six years ago, the U.S. military led the way in support of affirmative action, arguing that the nation was less safe without black and brown officers. For the U.S. military, integration of officer ranks was as important a job qualification as knowing military history or aerospace engineering. We think it matters in other contexts, as well.

 

What has bedeviled us these last 30 years since Regents of the University of California vs. Bakke is the notion that any pen-and-paper test can reveal everything you need to know in order to assess a candidate’s ability to lead. And so we persist with the legal fictions that every qualification can be numerically assessed and that history counts for nothing.

 

The decision does not address the big questions about affirmative action, namely: How much may white employees be inconvenienced in order to rectify centuries of past discrimination? When, if ever, is it appropriate to use affirmative action to create a diverse workplace?

 

Affirmative action is justified on the premise that diversity is good for us as a society, not that diversity rectifies centuries of wrongdoing. Our penchant for rugged individualism and laissez-faire survival of the fittest seduces us into believing that every person is entitled to every benefit society has to offer and that no individual should pay a price for the greater good of the society as a whole.

 

Justice Ginsburg says there was adequate evidence in the record that the New Haven test was flawed and resulted in bias against black and brown firefighters. Had that evidence been credited, the test could have been revised to be fairer. Surely New Haven could have devised a test or selection device, without a similarly undesirable racial effect, that also served the employer’s legitimate interest. Undoubtedly, a critical mass of white firefighters would have scored well enough on such a test to be promoted. But the court today decides that no white person need suffer any inconvenience to produce a fairer workplace.

 

This reasoning depends on a hyperindividualistic interpretation of American rights. Blacks were enslaved as a group. They were segregated as a group. They were held in economic and political subjugation in the South for decades following Reconstruction as a group. But now that we have reached the enlightened 21st century, remedies for these crimes cannot take the group stigma against blacks into account. Justice Sandra Day O’Connor wrote that the 14th Amendment to the Constitution protects individuals and not groups. We disagree.

 

Perhaps it is time to scrap the entire legal analysis of voluntary efforts to address discrimination. Perhaps we should permit employers and schools to devise plans to foster inclusion that straightforwardly account for past discrimination.

 

For hundreds of years, white males have enjoyed more than 95 percent of the best jobs, the best housing, the best incomes, the best health care, whether they were best suited or not. When small steps are taken to level the playing field, the court determines that no inconvenience to white applicants is permissible. The firefighters had no "right" to be promoted, merely an opportunity.

---