2009-05-15 / Columnists

The Rockaway Beat

What Has Race Got To Do With It?
Commentary By Howard Schwach

What is the difference between permissible race-consciousness and unlawful racial discrimination?

To many, this is not an academic debate, but a real-life issue that is of prime importance to thousands of American workers, particularly those who work for government.

The issue is so important, that the United States Supreme Court has taken it up for the coming term, with even those august debaters split down the middle.

The issue is basic. Does it matter if particular individuals can show that they were harmed by governmental decisions based solely on race?

I think it does, but many people would disagree, stating that the "greater good of society" demands that sometimes individuals have to be harmed to serve that greater good.

At issue is a real-life case.

It comes from a promotion test for firefighters in New Haven (Connecticut), but it might have come from New York City or any other large municipality as well.

The case, Ricci v. Destefano, rises from a group of white firefighters who were denied promotions after an examination yielded no black members eligible for advancement.

Justice David Souter called it a "damned if you do, damned if you don't situation," but I don't see it that way.

New Haven, the home of Yale University and some of the best Greek restaurants in the nation, needed some fire lieutenants and captains. It gave a promotion exam that was taken by several dozen firefighters, white and black alike. When the tests were scored, it was found that not one of the black firefighters had made the cut.

What did the city do?

It threw out the entire test, stating that it was afraid the city could be sued for racial discrimination because no black firefighters had passed the test.

The city argued that the decision to dump the test entirely was a "racially neutral act," because nobody would be promoted and nobody was singled out because of race.

The city's attorney argued that the fire department could engage in intentional discrimination in order to avoid a disparate impact," because that disparate impact could be construed as discrimination. Loosely translated from legalese, that means the city can decide to discriminate against white individuals if that eases the impact on blacks as a class.

Eighteen firefighters who passed the test and were therefore eligible for promotion, including one Hispanic man, sued.

To those eighteen firefighters, the question of using race as criteria for hiring or promotion is not an academic discussion. It is important to both their career goals and their salaries.

The federal government, which appeared as a "friend of the court," has taken a middle ground. It says that public employers should be protected when they try to comply with a federal law forbidding the use of some job qualifications that have a disproportionately negative impact on members of one race. The feds, however, urged the Supreme Court to send the case back to the lower courts to determine whether or not New Haven's asserted justification was a pretext for intentional race discrimination against the white and Hispanic firefighters.

The New York Times, that bastion of liberal (excuse me, I mean progressive) thought editorialized in favor of the city arguing that any test that has a disproportionate amount of high scorers of one race is therefore discriminatory.

Some of its readers do not agree.

"Such a test is not discriminatory, but merely discriminating," wrote Steven Goldberg, a professor at City College. "What would you prefer as a method for promotion? Interviews vulnerable to manipulation to insure hiring of applicants favored for discriminatory reasons? Random selection in which the least qualified are considered as worthy of promotion as the most qualified?"

Last week, Supreme Court members questioned advocates for both sides.

While the court's decision will not be made for some time, and it could agree with the government and send it back to the lower courts for clarification, it was clear from the questioning that the court is split on the issue, with conservative justices siding with the firefighters and progressive justices with the city.

Justice Antonin Scalia, for example, was critical of the argument that the decision was racially neutral.

"It's neutral because you throw out the losers as well as the winners," he pointedly asked the city attorney. "That's supposed to be neutrality."

Justice Anthony Kennedy, who will probably be the swing vote for the side that wins the vote, was also dubious about the city's argument.

"[The city] looked at the results, and it classified the successful and unsuccessful applicants by race," he said to the federal government's attorney. "And then you say that this isn't race? I have trouble with that argument."

So do I.

What the city did to a group of workers who regularly risk their lives for the public was reprehensible.

What it said to those workers is that what they do as individuals is not valued much when it comes to promotion because the happen not to be the color du jour.

I take this personally. When I was an editor for Xerox Education Publications (Weekly Reader, et al) in the 1970s, the company was faced with a suit that argued that they did not hire a sufficient number of women and minorities.

The company, which did not want to gut its prized machine division, decided to use its publishing outlets to even the score and satisfy the feds.

Within the span of several weeks, a large amount of male, white employees were replaced with women and minorities, satisfying the feds, but leaving me without a job.

Was that cut done for the "greater good?" The company and the feds seemed to think so.

Did it harm me as an individual? Of course. Was I laid off only because I was white and male? It seems so.

I understand the plight of the firefighters in New Haven, and believe that they are right.

No individual should ever be harmed in pursuit of the greater good, because what is perceived as the greater good often is not.

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While I understand what they are trying to do here you never see it work out the other way. Could you imagine trying to equalize the post office or other government agency to fall in line with Percentages of race to fulfill jobs. Only allowing 14% non-caucassion to work in the post office or the NBA. THere would be a cry of racism over that one.


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