Globe Editorial

A bad test for racial equity

June 30, 2009
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TO THIS DAY, black and Hispanic applicants suffer unfair disadvantages in the job market, in the form of either overt discrimination or hiring and promotion policies that perpetuate old wrongs. But a ham-handed effort by the City of New Haven to avoid a civil-rights lawsuit - which prompted a stiff response by the US Supreme Court yesterday - could make it harder for employers to change their ways voluntarily.

In 2003, New Haven’s Civil Service Board decided not to certify the results of a Fire Department exam after the results indicated that no black firefighters would be eligible for promotion. Eighteen white firefighters sued. Yesterday, the Supreme Court ruled for them by a 5-to-4 margin.

New Haven was asking for trouble: The city threw out a test that had already been given - after some firefighters spent vast amounts of time and money preparing. The city’s clumsy actions seem to violate basic fairness. And they are sure to fuel opposition to affirmative action, which is still sorely needed in a diverse society.

More complex than it looks
New Haven argued that, if it hadn’t overturned the test results, black firefighters could have sued on the grounds that the test effectively discriminated against them. In an opinion by Justice Anthony Kennedy, the court ruled that the city should not have bowed to the threat of a lawsuit, because it could reasonably have defended the test as related to the job of an officer in the Fire Department.

But as a matter of law, the four dissenting justices have the better case. No one has a right to a promotion. And as Justice Ruth Bader Ginsburg points out in her opinion, the majority has now created an impossible standard for employers who’ve kept minorities out previously but choose to mend their ways: Unless they explicitly admit that they’ve put up unnecessary obstacles in the past, employers will be hard-pressed to abolish hiring and promotion practices that disproportionately screen out black and Hispanic employees. Ginsburg writes that “an employer who discards a dubious selection process can anticipate costly . . . litigation in which its chances for success . . . are highly problematic.’’

New Haven has problems that need a remedy. In a detailed look at the city’s Fire Department recently, the online magazine Slate reported that tensions between black and white firefighters remain high. Minority applicants have trouble moving up in the department, when social networks and even the union representing firefighters seem stacked toward white applicants whose fathers and grandfathers served in the department.

Written exams are meant to take politics and patronage out of employment decisions, but they are an imperfect measure. One of the most successfully integrated institutions in the nation, the US Army, routinely makes promotion decisions based not on test scores but upon interviews that assess each candidate’s leadership skills.

The city went so far as to pay $100,000 to a testing consultant to develop an exam free of racial bias. What’s strange is that the city failed to take simpler steps that might have yielded more minority officers. New Haven gives preference in hiring to city residents, most of whom are black or Hispanic, but not in promotion decisions.

What now?
While affirmative action has remained a burning issue in think tanks and on elite campuses - and, clearly, among Supreme Court justices - an uneasy peace has taken hold in society at large. Crude techniques such as racial quotas remain anathema. But as more Americans have come to see diverse classrooms and workplaces as a desirable norm, gentler approaches to affirmative action - such as giving some preference to applicants who’ve overcome a disadvantage - don’t draw the same ire.

Former Justice Sandra Day O’Connor reflected this conflicted common wisdom in 2003, when she cast the deciding vote to uphold the University of Michigan Law School’s admissions system, which gave deans the ability to consider race as one among many factors in admissions. But she also voted with the majority that rejected the same university’s undergraduate admissions system, which rated all applicants and gave minorities a set number of bonus points.

The New Haven case was noteworthy in part because Sonia Sotomayor, President Obama’s nominee for the Supreme Court, had ruled for the city as part of a panel on the Second Circuit Court of Appeal. That stance hardly leaves her outside the legal mainstream: Four justices, including the one she is seeking to replace, ruled her way.

What’s clear is that federal judges, like Americans as a whole, are still struggling with how best to steer the country toward a time when racial preferences are no longer necessary - while recognizing that, for now, they still are. Approaches like New Haven’s don’t help. Neither do responses such as yesterday’s Supreme Court decision.

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