High court grapples again with race-based preference policies

(Originally published 4/25/09)

The national tug of war between affirmative action and reverse discrimination wound its way back to the U.S. Supreme Court this week.

The case was filed by 20 New Haven, Conn., firefighters who were among dozens who took oral and written promotional exams for lieutenant and captain positions in the state's second-largest city in 2003.

But when the test results came back, city officials threw them out –- not because no one passed, but because of who didn't: None of the black firefighters and only one Latino who took the exam made the grade.

So ... no one was promoted.

As CNN explains, "at issue is whether the city intentionally discriminated, in violation of both federal law and the Constitution's equal protection clause.

"The high court is being asked to decide whether there is a continued need for special treatment for minorities, or whether enough progress has been made to make existing laws obsolete, especially in a political atmosphere where an African-American occupies the White House."

The Court has staked out differing standards for race-based preference policies, generally protecting them more in higher education than in the workplace. And that is reasonable; profound resource and performance disparities persist along racial lines in America's schools, and the Court provides race-based preference policies to help ensure that every child has a fair shot at the advantages of higher education.

But the workplace isn't school -– and a burning building isn't the grassy quad.

We've all heard stories about public safety agencies that have lowered their standards to achieve racial, ethnic and/or gender diversity in enrollment or employment.

And diversity isn't some feel-good, disposable luxury. Cohesion and confidence follow when the men and women of public safety reflect the community they serve.

The problems occur when those elements -– high standards and pursuit of diversity -– get out of balance. Dropping standards to improve inclusion does a disservice both to the person seeking the position and the community that person seeks to protect: It dismisses the applicant's potential by assuming he simply can't measure up and endangers the community by assuming they don't need him to.

The key to the New Haven case could be the justices' interpretation of a federal civil rights law known as Title VII, which requires employers to ban actions, such as promotion tests, that would have a "disparate impact" on a protected class.

CNN notes that during arguments this week, Justice David Souter observed that a ruling against New Haven could leave city officials stuck in a "damned-if-you-do, damned-if-you-don't" situation, subject to lawsuits from both minority and majority employees.

This, along with the perpetuation of inequality and discrimination for new generations of Americans, is what happens when government "protects" some groups of its citizens over others.

The Court has a chance in the New Haven case to poke a big hole in the misconception that exacting standards and diversity are incompatible.

I hope, for the sake of safety and equality alike, that they do.

This week marks the two-year anniversary of my columns for the Opelika-Auburn News. Thank you to everyone who has written or spoken to me about a piece; I appreciate your comments, whatever your politics. And to all my readers, I know your time is valuable; thank you for spending a few minutes of your Saturday mornings with me.