The United States Supreme Court currently has under consideration a cluster of cases that deal with the issues surrounding government action in the application and enforcement of civil rights laws. These cases involve employment discrimination claims, voting rights issues, education policies and mortgage lending practices. The most visible of the cases involves claims of reverse race discrimination by a group of white firefighters who claim that they were unlawfully denied promotions when promotional exam results were thrown out because of major racial disparity in the passing rate. The Supreme Court is being asked to address whether the racial disparity in the exam results was a sufficient basis for denying assignment of promotions based upon the exam. The case is not totally unlike the prior Bakke case involving use of scores for admission to law school.
A little background is in order to understand the process. In typical fire department and police promotional systems, employees with a minimum level of experience are permitted to take a promotion exam in order to qualify for a pool. When promotional positions open, assignments are made from the pool of employees who score high enough on the exam. Other factors may influence specific job assignments, but the primary step is to qualify for the promotional pool. The pool usually lasts for a specified period or whenever there are no qualified pool members left to fill openings that may arise.
In the past, promotional practices of public service systems have been challenged by Black and Hispanic employees because of either the exams used or the selective failure to appoint employees of color once they made it into the pool as alleged in Minnesota. In some cases Black qualified pool members were targets and discredited in order to make then ineligible for actual promotion. Other devices used to discriminate have been supplying white candidates with test preparation materials prior to the exam and prior to release to non-white applicants, as alleged in Jacksonville, Florida. In some cases, even the test questions have been released to selected candidates to provide advantage. These systems have long been tainted by the spoils system and by a “good ol’ boy” network that has given unfair advantage to whites and relatives.
Conceptually, the main issue is the importance of the exam used for qualification purposes. Without question, fire departments are allowed to apply some criteria to determine minimum qualification for promotional positions. Exams have been used traditionally, but over the years the nature of the exams has come under closer scrutiny. Civil Rights laws against discrimination allow use of exams, but only if they are “validated,” that is shown to be valid measures assess competence and that predict successful performance. It is presumed that race is not a valid criterion for predicting successful performance. For example, the screening device used at airports detects metal objects like knives and guns. These items are presumed to present a potential safety risk to the flight operators and other passengers, the intent and purpose of the “test.” A ceremonial blade carried by a passenger may not be intended for illicit use on the flight, but it will nevertheless be picked up by the test because of its intrinsic properties and the passenger will be disqualified.
Imagine, however, if the same test screened out every passenger who happened to have dark skin or appeared to be of Arabic ancestry. Since the “test” is still applied to all, it is non-discriminatory in its application, but the results are flawed because the criteria measured and the way it measures are not valid. Thus, a focus on only one aspect of the exam is incomplete and flawed. If it is improper to make a judgment about qualifications on the basis of race or ethnicity, then the use of a “facially” neutral test that yields discriminatory results is not a valid process. If the test, on the other hand can be shown through repeated use and proper administration to yield results which are not significantly different based upon the race or ethnicity of the applicant, the test is valid even if the results in a specific examination application are skewed toward or against a particular racial group.
The judicial review system is supposed to be designed to answer narrow questions, rather than make advisory pronouncements or sweeping policy directives. Nevertheless, commentators are looking to past decisions and statements by current Supreme Court justices to predict the outcomes on these pending cases. The role of the current political environment and composition of the Court are always potentially influencing factors. Chief Justice Roberts has previously stated dislike for government intervention based upon race. Justice Scalia has traditionally been opposed to any government action that might aid minorities or correct past discrimination, and Justice Thomas has trotted along behind him in the great majority of cases despite a cultural heritage that should have made him more sensitive. These so-called “conservatives” tend to focus primarily upon the remedy aspect of the problem and ignore the fundamental causes that created the dispute. In their view, government is virtually powerless to use race as a factor in applying corrective measures even to patently discriminatory systems and practices, as long as the process appears to be facially neutral. Other justices acknowledge the existence and effects of racism and discrimination and allow governments certain narrow latitude in attempting to remedy specific discriminatory situations.
In the firefighter case, the issue is not really whether the white firefighters who passed the exam were discriminated against by throwing out the results. The larger issue is whether the fire department could demonstrate the validity of an exam in which not one single Black firefighter passed. If the fire department [government] believed that it could not do so, it was OBLIGATED to throw out the results because any appointments based upon the resulting pool would have violated existing laws. The true issue is the sense of privilege that causes the white firefighters to believe in and rely upon an exam, just because it is an “official” exam. Ample evidence shows that exams can be content and structurally biased and thus cause results that do not accurately measure the relevant criteria. In some instances, they do measure basic functional qualifications, but the added factors in the test so disadvantage applicants of some races that the results are skewed. It is not possible to tell who would have passed the functional part if the biased part had not been included.
The Supreme Court has the chance to focus on the real issues here and determine whether the exam could unquestionably have been defended as a validated instrument, that no reasonable examination of the exam could have caused the fire department to question that the results were non-discriminatory. If the answer is in the affirmative, then the results should not have been thrown out and the white firefighters allowed participation in the qualified pool. [The lead plaintiff Ricci still might not have been actually promoted to a desired position because his dyslexia may have been a bona fide occupational issue for actually performing the specific functions of a firefighting supervisor.] If the exam was not clearly defensible, the fire department was correct in refusing to rely upon the results. The racial disparity of the results should have been a “red flag” that the exam or its application was flawed. If the infirmity of the exam was racial bias, then it would stand logic on its head to say that use of race to identify and throw out a flawed exam would be illegal.
On the other hand, the Supreme Court has the opportunity to miss or deliberately avoid the real issues and decide that the test results should be upheld simply because the factor of race was used to throw out the results. This simplistic analysis would assert that the government is prohibited from using race as a factor in any of its employment actions. The philosophy behind this position tends to reinforce racism. It says that no matter how we arrived where we are, any action that we take at this point must be racially neutral. Neither affirmative steps to shape the system nor remedial steps to correct identified problems can be based upon racial factors. In the firefighter case, it would oblige the government to support a system and an exam that it truly believed to be discriminatory because it would be powerless to do anything to correct the racial disparity yielded by the results.
This notion ignores the very existence of racism, as it is axiomatic that current practices can serve to perpetuate past discrimination and further ingrain disparities that disadvantage people of color. A well meaning government official faced with a system that has embedded historical discrimination and biased practices would be powerless to take corrective action to create a more non-discriminatory system. It is like saying that, although white participants in a race were allowed to start the race ahead of the starting line, the race cannot be adjusted in order for the people of color to remedy the advantage that the whites started with. Some people of color will have such superior skill and talent that they are able to finish ahead of some whites. But the race cannot be called, in any true sense, a fair competition.
These case present a fundamental question as to the nature and character of governmental power in the US, as interpreted by the Roberts Court. The “original intent” of the Constitution, when written, did not consider Black people in the United States to be citizens, and laws which prohibited Blacks from presenting cases or acting as witnesses in court were considered Constitutional. The express language of the US Constitution, however, states that the government must act, when necessary, to protect the rights and welfare of all citizens. Subsequent decisions interpreting the Constitution as a “living document” have applied those protections to all people, regardless of race or ethnicity. The current Supreme Court will have a chance to deliberately hit or deliberately miss the most significant issues of these pending cases. Their decisions will provide evidence of the Court’s view of the current character of the nation.
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