TALK of disparate impacts and Title VII and validated tests and race as a barrier to opportunity can get pretty theoretical. Yet, how much more practical can you get than this: If your house is on fire (Heaven forfend) and youre caught inside, do you want the best firemen or the second-best firemen to undertake your rescue? And could you care less if all of the best firemen, yes, all of them, were white, or black, or some other mixture?
You want the best. And you dont care about race. Oddly enough, you dont care even if the race were uniform and were white. How far weve come or still need to travel when the issue is put this way. A half century ago, the issue would have been put, you dont care whos on the firefighting force even if theyre all black. Today, as we say, oddly enough, the issue that faced the Supreme Court in Ricci v. DeStefano was: Was it OK for the New Haven Board of Fire Commissioners to promote the best candidates the candidates who scored highest on the test even if they were all white? The board said no, and promoted no one.
The Second Circuit Court of Appeals including Supreme Court nominee Sonia Sotomayor also said no. Dont promote the best firemen if theyre all white. The Supreme Court said: This is blatant discrimination under Title VII of the 1964 Civil Rights Act, which prohibits intentional discrimination on the basis of race, color, religion, sex, or national origin. The New Haven Board of Fire Commissioners discrminated on the basis of race, the Supreme Court found.
This speaks well for the court. It speaks well for common sense. It does not speak well for Judge Sotomayor. It does not speak well for Justice Ruth Bader Ginsberg, who argued that New Havens decision to promote no one who qualified by passing the test was race-neutral because all the test results were discarded, no one was promoted. So, Ms. Ginsberg, do you want the second-best firemen to undertake your rescue?
