A bad test for racial equity

The Boston Globe
June 30, 2009

TO THIS DAY, black and Hispanic applicants suffer unfair disadvantages in the job market, in the form of either overt discrimination or hiring and promotion policies that perpetuate old wrongs. But a ham-handed effort by the City of New Haven to avoid a civil-rights lawsuit - which prompted a stiff response by the US Supreme Court yesterday - could make it harder for employers to change their ways voluntarily.
In 2003, New Haven’s Civil Service Board decided not to certify the results of a Fire Department exam after the results indicated that no black firefighters would be eligible for promotion. Eighteen white firefighters sued. Yesterday, the Supreme Court ruled for them by a 5-to-4 margin.
New Haven was asking for trouble: The city threw out a test that had already been given - after some firefighters spent vast amounts of time and money preparing. The city’s clumsy actions seem to violate basic fairness. And they are sure to fuel opposition to affirmative action, which is still sorely needed in a diverse society.
More complex than it looks New Haven argued that, if it hadn’t overturned the test results, black firefighters could have sued on the grounds that the test effectively discriminated against them. In an opinion by Justice Anthony Kennedy, the court ruled that the city should not have bowed to the threat of a lawsuit, because it could reasonably have defended the test as related to the job of an officer in the Fire Department.
But as a matter of law, the four dissenting justices have the better case. No one has a right to a promotion. And as Justice Ruth Bader Ginsburg points out in her opinion, the majority has now created an impossible standard for employers who’ve kept minorities out previously but choose to mend their ways: Unless they explicitly admit that they’ve put up unnecessary obstacles in the past, employers will be hard-pressed to abolish hiring and promotion practices that disproportionately screen out black and Hispanic employees. Ginsburg writes that “an employer who discards a dubious selection process can anticipate costly . . . litigation in which its chances for success . . . are highly problematic.’’

Full editorial: http://www.boston.com/bostonglobe/editorial_opinion/editorials/articles/2009/06/30/a_bad_test_for_racial_equity/