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Left Dodges Moral Debate on Ricci Case

Left Dodges Moral Debate on Ricci Case

By David Paul Kuhn - June 30, 2009

It took the story of one firefighter to expose the tension between fairness and affirmative action.

The nation's four most prominent liberal justices ignored that tension Monday. By consequence, the liberal justices decided that equal outcome should trump equal opportunity, when the two values compete. And in that decision, supported by a chorus of liberal analysts, American liberalism continued decades of thinking that places diversity, not fairness, as its first principle.

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The Supreme Court ruled Monday that white and Hispanic firefighters were unfairly discriminated against when the city of New Haven discarded a promotional exam because no blacks, or not enough minorities in the city’s view, earned a sufficient score to be promoted.

The ruling concludes one of the most widely debated discrimination cases of the past decade. Much of that attention is based on Supreme Court nominee Sonia Sotomayor's involvement in the case. Sotomayor, as an appellate judge, upheld the initial decision siding with New Haven.

In the end, the Court's conservative majority prevailed in yet another 5 to 4 vote. But it's the minority's dissent--a view supported by the Obama administration in its brief submitted to the Court--which stirs up liberalism's ongoing avoidance of affirmative action's "real-world" negative consequences.

The Court's united liberal view on affirmative action carries heightened resonance today. Democrats hope President Obama marks the beginning of an enduring political majority. A primary aim of either party, when seeking sustained dominance, is to shift the Court to their side. Had today's Court been left leaning, liberals should be troubled to know, it would have almost certainly upheld a policy that denied a promotion based on the color of those promoted.

The Ricci case gets to the core of the American ideal of "the pursuit of happiness" as an "inalienable right." This right was most egregiously denied to blacks through slavery. It was not until the 1960s that the nation finally confronted and outlawed discriminatory practices. Affirmative action was instituted to correct past inequality.

Nearly a half-century later, liberalism faces new questions. In the time of the first black president, when white men's unemployment rate increases at twice the rate of black women in this recession, liberal thought has remained hinged to an earlier era.

Title VII of the 1964 Civil Rights Act prohibited discrimination based on disparate treatment or disparate impact. In 1960s and 1970s America the tension between the two principles was mitigated by the need to right history.

The liberal opinion, written by Justice Ruth Bader Ginsburg on behalf of all four left-leaning justices, argued Monday that the "purpose" of Title VII's disparate-impact provision "is to ensure that individuals are hired and promoted based on qualifications manifestly necessary" and "do not screen out members of any race."

The liberal justices refused to reckon with instances when the desire for "manifestly necessary" skills creates an unequal racial outcome, as was the case in New Haven.

The conservative majority addressed this tension Monday. It decided New Haven's actions amounted to disparate treatment, what the rest of us call overt discrimination.

An Illiberal Argument

Liberals now find themselves bunkered down beneath illiberal logic. Conventional affirmative action supporters effectively back discrimination for the sake of diversity. The driving role that class and culture play in endemic inequality is ignored. Affirmative action has become an entitlement supported despite consequence or context.

Whites overwhelmingly support a move toward class-based affirmative action that would still disproportionately aid minorities. But liberals remain seemingly vested in defending affirmative action as it was conceived, in a time far different than today.

The liberal opinion on the Ricci case upheld the city's effort to find any means to hold fast to conventional affirmative action. The city, after extended deliberation, decided that it was legal to discard the test results if no one was promoted.

Ginsburg echoed earlier decisions when she wrote that the city policy was "race-neutral in this sense" because "‘[A]ll the test results were discarded, no one was promoted, and firefighters of every race will have [the opportunity] to participate in another selection process to be considered for promotion.'"

The liberal argument feels like the cold legal judgment opposed by Barack Obama, in his criteria for nominating new liberal justices.

"She understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts," the White House wrote when Sotomayor was nominated.

Consider the well known details of the case's lead plaintiff, Frank Ricci. He gave up a second job and spent a third to half of his days studying over a period of months. He paid an acquaintance more than $1,000 to read textbooks onto audiotapes to overcome his dyslexia. He passed the test. Earned the promotion. But he was denied that promotion because diversity took precedent over qualification.

As I wrote in an earlier article on Ricci and concepts of "white male privilege," Ricci personifies the negative impact of so-called "positive discrimination." It's precisely this impact that liberalism must confront. The liberal argument ignored issues of harm, the loss of time or additional income suffered by Ricci and his fellow plaintiffs.

Ginsburg wrote that the majority opinion ignores firefighters' "long history of rank discrimination against African-Americans." It's an important consideration. But Ginsburg ignored the decades of distance from that history.

The liberal opinion goes on to write of the city's "unlikely" desire to exclude white firefighters from promotion because "a fair test"--fair, in this sense, meaning equal outcome--"would undoubtedly result in the addition of white firefighters to the officer ranks."

This line of argument would have us believe that a "fair" system would promote some white applicants who passed the test while denying other white applicants who also passed. Ginsburg argues that the deliberate denial of some white men’s hard-won promotion because of their race is preferable to an inadvertent result in which no members of a minority group passed. This logic may be based on precedent. But it does a disservice to the brave fight for equality that liberals championed for decades.

The Ginsburg argument places disparate impact above disparate treatment. It argues, at best, that subtle discrimination is preferable over its more overt form. This is the inverse of our common hierarchy of justice. Common sense dictates that intentional harm is worse than accidental.

The test was created by a company specializing in employment exams and met legal requirements, such as a review by independent experts. But the liberal argument ignored the quality of the test and focused on the result. This logic is again based on civil rights era precedent and again faulty. It defines quality by demographic outcome. It consequently attempts to uphold the outdated use of quotas in that earlier era.

The city claimed that it trashed the test only because it was afraid of being sued for discrimination by the minority applicants. But practical consequences also matter in law, as Obama has said.

Liberals continue to argue today that affirmative action is the result of employers impeding the progress of minorities. But the Ricci case captures how affirmative action improves the position of minorities often by impeding the progress of whites. And it's the most vulnerable whites who often pay the price of affirmative action, those men who lost blue-collar jobs and know nothing of privilege.

Mistaking Cure for Disease

Sotomayor has commendably acknowledged that affirmative action played a critical role in her admittance to Ivy League universities. And to be sure, diversity has its practical benefits. One needs Spanish speaking social workers or black police officers patrolling black neighborhoods. Whites can be ill served by a homogenous education. But when diversity is emphasized solely for its own sake, the cure becomes the cause rather than the true cause--curing the disease of discrimination.

It has been suggested that New Haven could have certified the test results and found "alternative ways to deal with these issues in the future." Does this mean that every test that does not achieve the desired demographic result should be tossed out?

At some point, in some cases, the liberal argument places diversity above the skill level of a workforce. It is exactly this thinking that contributes to the decades of distance between Democrats and working and middle class whites.

For Sotomayor in particular, her role in the Ricci case is hardly radical. She upheld precedent. So-called "judicial activism" is not a tool exclusive to the right or left. Sotomayor's view on affirmative action was in the mainstream of liberal thought. But on this policy, liberal thought is not in the mainstream.

A Quinnipiac University poll recently detailed the Ricci case and found that seven in ten Americans, including 53 percent of blacks, believed the Court should compel "the city to promote" the firefighters even if no blacks "scored high enough to qualify."

Blacks overwhelmingly support affirmative action. But when given a specific example of the negative side of the policy, even a majority of blacks changed their mind.

Yet the liberal justices hid from these moral issues. The minority opinion sought to stay within the safe confines of precedent. It focused on defending the city's effort to avoid a civil rights lawsuit. The deeper issues that liberal justices ache to confront on other occasions, questions of fairness and equality, went ignored.

Imagine the opposite of the Ricci case. A test is tossed out because not enough whites earned a promotion and too many blacks did. Would liberals support the city's action then?

"We are not unsympathetic to the plaintiffs' expression of frustration," Sotomayor and her fellow appellate justices wrote last year. The Supreme Court liberal justices wrote in their opinion that the firefighters denied a promotion "understandably attract this Court's sympathy."

Sympathy is exhibited not in words but actions. The liberal justices sought sanctuary in the legalese of the case. They argued for the continued use of unequal actions to attain an equal outcome and thereby undercut the roots of liberalism, the right to equal opportunity. Those who once fought for equality, and stood on the shoulders of that fight, are reduced to justifying inequality to combat inequality. In this era of Obama, it's the measure of what remains unchanged that is sometimes most striking.

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David Paul Kuhn is a writer who lives in New York City. His novel, “What Makes It Worthy,” will be published in February 2015.

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