Tuesday, May 26, 2009

Barry In Charge: "When I Endorse A Racist, It's OK" pt II (the white firefighters get burned)

What easily should be fodder for the vetting process that SCOTUS nominees must go through is instead probably going to die a quick death with the press, so as to shame any discussion of the race issue in Ricci v. DeStefano. They will simply say that any discussion of that case is unfair to Sotomayor, because she already addressed that issue, she shares a similar experience as a member of a minority in America, etc.

But ruling as she did sets up a dangerous double-standard: If methods of determining ability to progress in work and society are made according to race, where does it stop?

Sotomayor Faces Scrutiny on Controversial Firefighters Ruling

Editor's Note: Among the more controversial cases that Supreme Court nominee Sonia Sotomayor participated in is Ricci v. DeStefano, involving affirmative action in the New Haven, Conn., fire department. A panel including Sotomayor ruled against a group of white firefighters who passed a promotion exam that was later discarded because no black applicants had passed. Newsmax ran the following story about the case on April 18.

NEW HAVEN, Conn. -- Inside a burning building, fire doesn't discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.

The Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities likely to violate the 1964 Civil Rights Act.

Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?

Also, beneath the specific details of the firefighters' lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.

Reconciling that reality with efforts to ensure "justice for all" remains a work in progress _ one that will be molded by the Supreme Court.

New Haven's population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city's firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.

The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent.

Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam.

He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.

"I just call it 'the network,'" Tinney says.

The white firefighters' attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News' "Hannity" program, Marcarelli said it was "gut wrenching" to learn that he was No. 1 on the test but would not get promoted.

"It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case," Marcarelli said.

Torre said whites have no special advantage in promotions because of laws requiring use of a race-blind, score-based system. She added that many blacks have relatives on the force, including high-ranking officers.

One hundred and eighteen people took the tests; 56 passed. Nineteen of the top scorers were eligible for promotion to 15 open lieutenant and captain positions. Based on the test results, the city said that no minorities would have been eligible for lieutenant, and two Hispanics would have been eligible for captain. (The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.)

The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.

But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.

"I'm sure there are numerous reasons why (blacks didn't do as well), and not because we're not as intelligent," Tinney says. "There's a lot of underlying issues to that ... these folks are saying, 'We studied the hardest, we passed the test, we should be promoted.' But they're not talking about all the other things."

Torre argues that discarding a test because no minorities would have been promoted violates the equal protection clause of the U.S. Constitution and Title VII of the Civil Rights Act, which forbids discrimination because of race.

Call it a legal riddle only the Supreme Court could solve: The white firefighters say Title VII prohibits discrimination against them for being white; New Haven says Title VII prohibits it from using a test that has a disparate impact against blacks.

"All were afforded the same notice, the same study period, the same exam syllabi, etc.," said Torre, who would only answer questions by e-mail. "The rest was up to the individual."

There are long-standing divisions over the concept of hardworking, qualified whites being "victimized" by laws or practices designed to help minorities overcome America's history of racism. What's different today is that the landscape has shifted in many ways, big and small.

The biggest is the election of President Barack Obama, and the support he received from millions of white voters.

"It is not white racism that plays the deciding role in the success of minorities any more," says Edward Blum, a visiting scholar at the American Enterprise Institute who believes that race should not be considered in employment decisions.

"That was the case in the '60s and '70s and maybe even part of the '80s," he says. "But it is no longer the case in the 21st century that because you are black you are being held back from achieving what your parents and your ambitions will allow you to achieve. I think that has been crystallized with the election of President Obama."(source)

Sotomayor Biography/Recent Rulings:
Try this from the Federal Judicial Center for a quick summary.
Here’s a little more from the US Court of Appeals for the 2nd Circuit.
Cases where she has written opinions appear here: http://www.ca2.uscourts.gov/decisions/isysquery/144e90b4-7041-40e2-8a88-668c948dac04/1-10/list/

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