.....The Ricci Case
In 2003, the New Haven fire department had several vacancies for new lieutenants and captains. Candidates for promotion had to take a written and oral test. Candidates had three months to prepare. Ricci gave up a second job to study. Because he is dyslexic, Ricci paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He studied 8 to 13 hours a day. And he succeeded. Ricci's exam ranked sixth among the 77 candidates who took the test.
But New Haven's civil service board ruled that not enough minorities earned a qualifying score. The city is more than a third black. None of the 19 African-American firefighters who took the exam earned a sufficient score. The city tossed out the exam. No promotions were given. Ricci and 17 other white firefighters, including one Hispanic, sued New Haven for discrimination.
In 2006, a Federal District Court ruled that the city had not discriminated against the white firefighters. Judge Janet Bond Arterton argued that since "the result was the same for all because the test results were discarded and nobody was promoted," no harm was done.
But in reality, the decision meant that Ricci and other qualified candidates were denied promotions because of the color of their skin. This is the essence of discrimination. The exclusion of a person from earned advancement because of his or her race. The Ricci case exemplifies decades of faulty policy that mistook equal opportunity for equal outcome.
When the case came before the three-judge panel of the New York federal appeals court, Arterton's ruling was upheld in an unsigned and, as the New York Times described it, "unusually terse decision." One of the judges who upheld the ruling was Sotomayor.
Judge Jose Cabranes' dissenting opinion noted that the ruling "lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal" and "contains no reference whatsoever to the constitutional claims at the core of this case," concluding that the "perfunctory" actions of the majority in their decision "rests uneasily with the weighty issues presented by this appeal."
As Slate's Emily Bazelon wrote, "If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed."
In April, the Supreme Court took up the case in oral argument. The ruling is expected in June. Most legal scholars expect Ricci to prevail. But the debate over affirmative action will continue.
Discrimination against white males, termed "positive discrimination," is at the essence of affirmative action law and policy.
Affirmative action made sense at its inception. Rampant discrimination against minorities and women only began to subside in the 1960s. Much, though not all, has changed. Now it comes to us to decide whether affirmative action should change as well.
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