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The Conservative Curmudgeon
May 27, 2009

Toward a Genuinely Color-Blind Society?
by Allan C. Brownfeld

The case of Ricci v. DeStefano could provide an opportunity to move our country in the direction of the genuinely color-blind society — a goal long sought by men and women of good will.

President Obama’s Supreme Court nominee, Sonia Sotomayor, sits on the Second Circuit Court of Appeals, where she heard the arguments for Ricci v. DeStefano, now pending before the High Court.

The case has been brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. The city decided to throw out the test, calling its action “racially neutral.”

In Ricci v. DeStefano, 19 white firefighters and one Hispanic say they should have been promoted based on their successful scores. The city argued that certifying the tests would have left it vulnerable to lawsuits for violating Title VII of the Civil Rights Act if the white firemen were promoted.

Judge Sotomayor voted to uphold the rejection of the white firemen.

“Racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics,” said Gregory S. Coleman, who represents the group of 20 firefighters. “Neither equal protection nor Title VII justified New Haven’s race-based scuttling of the promotions petitioners earned through the civil service process mandated by Connecticut law.”

Frank Ricci was one of more than 130 firefighters who took written and oral tests in 2003 to fill a few promotion slots. An oral component accounted for 40 percent of the score, while the written component, designed at a tenth-grade reading level, accounted for 60 percent of the test.

Ricci’s personal story cannot be separated from the case. He prepared for the 2003 exams by quitting his second job; buying more than $l,000 worth of books the city recommended; paying to have them read onto audiotapes because he is dyslexic; taking practice tests; and submitting to practice interviews. His hard work earned him the sixth highest grade on the examination. It is his claim that denying him promotion violates the l964 Civil Rights Act and the Constitutional guarantee of equal protection of the law.

While New Haven claims that the l964 act compelled it to disregard the results of the examination, the fact is that the act makes it unlawful for employers to discriminate against an individual regarding the “terms, conditions, or privileges of employment because of such individual’s race.”

In the 1964 debate over passage of the Civil Rights Act, two of the act’s supporters, Senators Joseph Clark (D-PA) and Clifford Case (R-NJ), insisted that it would not require “that employers abandon bona fide qualifications tests where, because of differences in background and educations, members of some groups are able to perform better on these tests than members of other groups.”

In supporting the legislation, Senator Hubert Humphrey (D-MN) declared that the act “does not require an employer to achieve any kind of racial balance in his work force by giving any kind of preferential treatment to any individual or group.” He said that there must be an “intention to discriminate” before an employer can be considered to be in violation of the law.

Over the years, with the introduction of a variety of race-based affirmative action programs, the color-blind standard clearly enunciated in the Civil Rights Act has been seriously eroded. Any test that distinguishes between individuals and results in a statistical disproportion between whites and blacks has been considered suspect by the Equal Employment Opportunity Commission (EEOC). An employer using such a test has to go to extraordinary lengths to defend its use.

Professor Nathan Glazer of Harvard points out, “Any test that distinguishes between individuals (which is, after all, their purpose) will also, willy-nilly, distinguish between groups. If it tests for vocabulary, or knowledge of rules, or ability to understand instructions, it will clearly be affected by the differing degrees of education and educational achievement that are characteristic of different groups at a moment in time. If it tests for nonverbal capacities, it will also, owing to the complex and subtle effects of history and culture, distinguish between groups. Even if tests for height — as is the case for some occupational tests — it will distinguish between groups.”

Our legal tradition mandates individual rights, not group rights. This has, in fact, been the goal of civil rights organizations for many years. Thurgood Marshall, arguing for the NAACP in the case of Sipuel v. Board of Regents of the University of Oklahoma (332 U.S. 63l, l948), declared, “Classifications and distinctions based on race or color have no moral or legal validity in our society.”

Beyond this, affirmative action programs based on race are demeaning to the very groups they are meant to serve, implying that members of these groups cannot compete successfully in the marketplace.

Many thoughtful black critics have long opposed such programs. Professor Orlando Patterson, writing in The Public Interest (Summer l973), declared: “There can be no moral equality where there is a dependency relationship among men. There will always be a dependency relationship where the victim strives for equality by vainly seeking the assistance of his victimizer. In situations like these we can expect sympathy, even magnanimity from men, but never — and it is unfair to expect otherwise — the genuine respect which one feels for another.”

More than 25 years ago — long before the dramatic progress we have seen in race relations — Professor Patterson said that judging individuals on the basis of race legitimizes “atavistic sentiments” and “awakens and lends respectability to the most primordial of group identities — race.”

In l980, this writer was a member of President Ronald Reagan's transition team at the EEOC. That team was headed by the respected black conservative J. A. Parker, editor of The Lincoln Review, and included Clarence Thomas, long before he was named to the U.S. Supreme Court. The report we issued concluded that, “The goal of all Americans of good will should be the creation of a society which is both color-blind and committed to economic growth and advancement. A system of racial quotas and classifications in a declining economy is the prescription for inter-group tensions and social dislocation. It violates our basic principles of individual freedom and our hope for continuing progress.”

Those words are as true — and as relevant — today as they were when written. The New Haven case provides us with an opportunity to move us away from the racial spoils system of recent years and toward the genuinely color-blind society the vast majority of Americans of all races seek to achieve. The question now is, with Sonia Sotomayor on the Supreme Court, will it move in that direction?

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The Conservative Curmudgeon is copyright © 2009 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.

Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.

He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.

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