Are All Civil Rights Special Privileges Now?Assessing the damage done by the Supreme Court in the New Haven firefighters case.
Posted Thursday, July 2, 2009, at 1:19 PM ET
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StumbleUponOne could say that any effort to combat racial inequality is itself race conscious and therefore discriminatory. So far, no one has been bold enough to make this argument against laws prohibiting intentional discrimination on the basis of race or sex, but opponents of gay rights have made just such an argument, attacking laws that prohibit discrimination on the basis of sexual orientation as "special rights." In 1996, in Romer v. Evans the Supreme Court invalidated a state constitutional amendment in Colorado that eliminated civil rights protections on the basis of sexual orientation. Justice Scalia, in dissent, described this amendment as "merely prohibiting … special protections," insisting that the basic civil rights banned by Amendment 2 gave gay men, lesbians, and bisexuals "favored status because of their homosexual conduct." (My italics.)
Of course, for the gay person looking for a job or an apartment and facing bias at every turn, basic protection against discrimination doesn't seem like favoritism. But taken out of their social and historical context, all civil rights can be made to look like special rights. Civil rights laws aren't just derived from abstract principles of justice—they also reflect a policy decision about how to best direct the scarce resources that must be dedicated to the enforcement of the law and the litigation of disputes. Federal law doesn't demand that employers treat all of their employees fairly in every respect; it prohibits only unfairness that's based on race, color, sex, religion, national origin, age, and disability. (I hope we'll add sexual orientation to this list soon.) No one doubts that civil rights laws were intended to, and do in fact, disproportionately benefit those groups most likely to suffer from the prohibited types of discrimination: racial minorities, women, religious minorities. So because racial and sexual discrimination are illegal, but discrimination against people with abrasive personalities or antediluvian political views is not, you could argue that civil rights laws benefit people like Sonia Sotomayor at the expense of people like Antonin Scalia.
So is it discriminatory to prohibit discrimination? Of course not. This country has a long and ugly history of specific types of discrimination, such as discrimination on the basis of race. Although things have changed for the better, racism isn't a thing of the past yet. And the continuing effects of past racism still limit opportunities for many racial minorities today. Addressing these injustices isn't doing anyone a special favor—it's simply doing justice. The majority in Ricci ignored the social and historical context that defines civil rights law, just as it ignored more than three decades of judicial precedent and the explicit endorsement of Congress, which wrote disparate impact law into Title VII in 1991. By means of shameless judicial activism, it turned the civil rights tradition against itself and against social justice. The logic that condemned New Haven's awkward but defensible attempt to avoid the discriminatory effects of its promotion exam can be extended to condemn any attempt to prevent any form of discrimination. It will take only a sympathetic plaintiff, a hapless defendant, some bad facts, and some clever lawyers to make even the most well-established civil right look like a special privilege.
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New Haven administered a test for promotion, and after it didn't get the results it wanted, threw out the test; so the individuals who took the test and should have been promoted were not. Those individuals (Ricci) were wronged. However, if New Haven had promoted those individuals and simply changed its promotion policies the next year, it would have been fine. The key is that once a process is in motion, you can't undo it in order to achieve a racial mix.
In the case of Texas, applicants to the student body all apply understanding what the criteria are, and they don't change midway through the process. If Texas has its 10% policy for Fall 2009 applicants, but doesn't get enough minorities, throws out all the applications and orders people to reapply under some new policy within the same year, THEN they may have an issue.
-- Alcibiades
(To reply, click here)
Alcibiades, I think you touch on an important point of this case that may actually have nothing to do with race at all. When one applies for a job or to a university, the employer or university is responsible for providing transparent criteria for the selection of their employees/students. To do otherwise (or to change the criteria after the applications have been completed) is a bit like fraud.
-- gummybrain
(To reply, click here)
The city, had it let those test results stand in this case, would simply have faced a different lawsuit quite possibly. I do think that two questions need to be answered: what is the direct relevance of the written test to the job at hand and are some of the questions on the test aimed to favor one racial group or another? There are plenty of books out there on how to study for firefighter's exams; I've seen them on bookstore shelves. Assuming they reflect the content of the tests, it is difficult to see how they would discriminate on the basis of race. Theoretically, they are totally job-oriented. In that case, the relevance of the test to the job is a serious question. Do people who score higher fight fires better? And how would one prove that?
-- Marik7
(To reply, click here)