Workplace justice denied

THE U.S. Supreme Court dealt a serious blow to civil rights in its ruling in the case Ricci v. DeStefano. At stake is the future of affirmative action--and, in fact, any government measures to help minorities to fight workplace discrimination.

The ruling came a few weeks before senators began their interrogation of Barack Obama's first Supreme Court nominee, Sonia Sotomayor--with Republicans claiming that Sotomayor has shown favoritism toward minorities and women in her decisions as a federal judge.

But the facts of the Ricci case show that conservative complaints about affirmative action and anti-discrimination measures turn reality on its head.

The Ricci case revolves around the New Haven, Conn., Fire Department, which decided in 2003 to base promotions primarily on written exams. Of the 41 applicants who took the captain exam, eight were Black; of the 77 who took the lieutenant exam, 19 were Black. None of the African American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.

As the city attorney pointed out, promoting white firefighters based on these results would almost certainly incur a lawsuit under Title VII of the Civil Rights Act, which prohibits workplace discrimination. Minority candidates in similar situations have successfully sued on the basis that a test that has a disparate impact on a particular racial group must be specifically job-related in order to be legal.

Fearing just such a legal challenge, the city of New Haven decided to drop the exam results entirely. Instead it was hit with a lawsuit by white firefighters claiming that they were being discriminated against because they weren't promoted on the basis of the test.

The white firefighters' case was rejected by two lower courts, one of which included Supreme Court nominee Sonya Sotomayor. But in a 5-4 decision, the U.S. Supreme Court ruled in favor of the firefighters.

Karen Torre, lead attorney for the New Haven 20 (the 19 white and one Latino firefighters who filed the suit), began her 80-page legal brief by stating: "Our Constitution envisions a society in which race does not matter, and individuals are judged on the strength of their character and the value of their achievements." Her clients, Torre wrote, "ask nothing more than the basic American right to be judged by who they are and what they have accomplished, not by the color of their skin."

Of course, the U.S. Constitution originally designated Black slaves to be three-fifths of a human being. But leaving that historical detail aside, the brief rehashed familiar refrains from the long backlash against affirmative action since the decline of the civil rights movement--in particular, allegations of "reverse discrimination" and the claim that whites were the ones who really wanted equality before the law.

In the wake of the election of the country's first Black president, the right wing is playing on the idea that America is now a "post-racial" society, where policies designed to assist minorities only amount to special privileges. Seeing the opportunity to score a major legal victory, a host of national right-wing organizations filed briefs in support of the New Haven 20, including the libertarian Cato Institute and the Center for Individual Rights.

BUT A closer look at the situation in New Haven raises serious questions about the right wing's claims.

For starters, it seems reasonable to ask why a majority of firefighters taking the test are white, when a majority of New Haven residents are minorities.

Donald Day, retired firefighter and former regional director of the International Association of Black Professional Firefighters (IABPFF) discussed some of the reasons for the disparities at a forum reported on by the New Haven Independent. "Historically, as African Americans, we don't do as well on strictly written exams," Day said. Oral exams are fairer, he argued, but they're also more expensive to administer.

Warning of a return to the "bad old days," Day continued: "If the Supreme Court rules that we can't use these guidelines anymore, it'll affect every police officer, every firefighter...every postal worker, every corrections officer. This will affect Blacks and Latinos for years to come. This is bigger than New Haven, and it's bigger than the fire department."

Joseph Muhammad, a New York firefighter who serves as IABPFF president, argued that a ruling in favor of the New Haven 20 would prevent diversity and the ability of qualified African Americans to advance across the country. Citing 2007 Labor Department statistics, Muhammad said that of 288,000 firefighters in the country, 247,000 are white and 235,000 are white men.

John Brittain, a former law professor who was instrumental in a case called Sheff v. O'Neill that led to a Connecticut Supreme Court decree to desegregate Hartford-area public schools, spoke at a rally of civil rights groups in support of the city's decision. Brittain drew parallels between Sheff and Ricci.

"Sheff fought against segregation in education," he said. "This case is fighting against continued segregation and discrimination in the fire departments in America. With all the progress we've made in 30 years, fire departments are still a white club."

In an op-ed article for Forbes, law professor Bruce Carolan laid out the background to this disparity:

For generations, big city fire departments have been the preserve of whites...And how were these jobs filled? Fathers told sons and uncles told nephews when entry exams for the fire department were coming up. Examinations that were not widely advertised in minority communities, if at all. In some fire stations, there were books of past exam questions that a candidate with an "in" could study before taking an exam. Tests very often consisted of essay or multiple-choice questions.

Is it any wonder that fire departments remained overwhelmingly white? Eventually, African American and other minority firefighters--some of whom might have been educated in segregated schools with far fewer educational resources--challenged the methods used to hire and promote firefighters. Methods that almost always produced shockingly lower scores for minority candidates than for whites.

These minority candidates asked a logical question concerning the job-relatedness of written exams for positions in the fire department: Does anyone go to a fire and say, "What a spectacular blaze, I think I'll write an essay about it"?

Reading about this case I was reminded of an interview I conducted a few years ago with Carl Pullen, who described his experience as a Black police officer in New Haven in the 1960s and '70s. "They wouldn't promote us; they would give us the worst assignments," Pullen said. "We only had two areas they used to give us...At that time, there were no [Latino] police officers or females on the police department."

Historian Yohuru Williams confirmed Pullen's observations. "Despite a steady increase that migration and white exodus brought to the share of New Haven's Blacks," Williams wrote, "until 1968, not one of New Haven's 31 nonwhite policemen, out of 446, had been allowed to rise above the rank of a patrolman." Black officers were discriminated against in hiring, task and area assignments, promotions and rewards and disciplinary measures.

All of this would change dramatically in the next decade thanks to the rising tide of civil rights activism. According to Pullen, the Silver Shields, a fraternal organization of Black police officers, filed a lawsuit against the city of New Haven challenging discrimination on assignments and promotions, and demanding that the NHPD hire more minority and female officers.

TODAY, THANKS to struggles such as these, blatant discrimination is less prevalent (though it still exists--witness the recent revelations that Wells Fargo explicitly targeted minorities for riskier subprime mortgages, or what some agents referred to as "ghetto loans").

Even so, the idea that past injustices have no bearing on the opportunities available to minorities today is wrong. When I lived in New Haven for several years, the impact on the Black community of years of chronic unemployment, substandard housing, segregated education and targeting by the criminal justice system was obvious.

According to 2000 Census figures for Connecticut, Black men make up less than 3 percent of the population, but account for 47 percent of inmates in prisons, jails and halfway houses. Connecticut is the richest state in the country according to per capita income statistics, yet New Haven is one of the poorest cities in the U.S.--with a poverty rate in 2000 of 24.4 percent, compared to a statewide average of 7.9 percent. The city's infant mortality rate rivals that of Malaysia.

As Melvin Oliver and Thomas Shapiro write in the book Black Wealth/White Wealth:

The disadvantaged status of contemporary African Americans cannot be divorced from the historical processes that undergird racial inequality. The past has a living effect on the present...Each generation of Blacks generally began life with few material assets and confronted a world that systematically thwarted any attempts to economically better their lives.

The roots of this process, of course, lie in the fact that America's wealth was originally built on the unpaid labor of millions of slaves kidnapped from Africa. In an act so belated as to be embarrassing, the U.S. Senate only this year officially apologized for "the fundamental injustice, cruelty, brutality and inhumanity of slavery and Jim Crow laws."

But the senators were careful to emphasize that such an apology carried no obligation to right the wrongs of past injustices. This was no doubt because of several lawsuits demanding reparations that have stalled in the courts in recent years.

In addition to the government itself, these suits target a number of companies and individuals that benefited from the slave trade. Aetna, for instance, sold policies insuring slaveholders against loss of their slaves, and numerous banks from JPMorgan Chase to Fleet Boston (now owned by Bank of America) accepted slaves as collateral.

Yale University, New Haven's largest employer and a training ground for America's next generation of rulers, also has roots in slavery. According to research published by the Amistad Committee, money from the slave trade financed Yale's first endowed professorship, its first endowed scholarships and its first endowed library fund.

Timothy Dwight, president of Yale from 1795 to 1817, wrote extensively in support of slavery, arguing that a man "who receives slaves from his parents by inheritance certainly deserves no censure for holding them." A study from the period showed that Yale had the highest number of pro-slavery graduates, and to this day, 10 of Yale's 13 residential colleges are named for slave owners or those who supported slavery.

Yale is now the second-richest university in the country, with an endowment of nearly $23 billion. Yet the poor and minority youth whose neighborhoods surround it are hundreds of times more likely to end up behind its cafeteria counters--or behind bars--than studying in its ivory towers.

It is these institutions that deserve to be on trial--not measures by which minorities can hope to finally get a chance at opportunities denied them for centuries.