The International Association of Hispanic Firefighters makes three false presuppositions that reversing Judge Sotomayor's decision will exacerbate racial tensions in other firehouses in Connecticut and across the nation.
On March 25, 2009, International Association of Hispanic Firefighters filed an Amicus brief to the Supreme Court supporting the decision of New Haven to deny promotions to firefighters that passed their promotional exam. By doing this, the International Association of Hispanic Firefighters not only denied a member of their organization, Latino firefighter Ben Vargas, proper representation, but also contradicted the position of the New Haven Hispanic Firefighters Association that supported the 20 firefighters that passed their promotional exams.
When the city of New Haven discovered that no black entrants qualified for an immediate promotion based upon test scores, they decided to nullify the test to avoid a discrimination lawsuit from black firefighters. New Haven officials stated they tossed the exams based upon "Disparate Impact;" a legal term grounded in the Civil Rights Act of 1964. Disparate impact occurs when an employer's hiring practice has an adverse exclusionary effect on a protected class. For instance, if an employer uses a lifting requirement of 100 pounds as a hiring practice; and as a consequence, men were hired at a ratio of 10:1 over women, then that hiring practice has had a disparate impact on women as a protected class.
The Amicus brief of the International Association of Hispanic Firefighters provided several different arguments in an attempt to justify the decision New Haven officials. In this piece, I will examine the first argument made by the IAHF. The rest I will examine at a later time.
The First Argument of the International Association of Hispanic Firefighters
The first argument made by the International Association of Hispanic Firefighters is as follows:
"Reversing the second circuit's judgment that a decision to avoid potential discrimination is not itself discrimination. To reverse it will exacerbate racial tensions in public safety departments in Connecticut and in other workplaces throughout the county."
The International Association of Hispanic Firefighters makes three false presuppositions that reversing Judge Sotomayor's judgment to uphold the decision of New Haven will exacerbate racial tensions in other firehouses in Connecticut and across the nation.
It's true that reversing Sotomayor's ruling will lead to increased racial strife, but the IAHF neglects the evident fact that not overturning Sotomayor's judgment will make racial tensions far worse than leaving it alone. (Like Justice Souter said of Ricci v. DeStefano, it left New Haven in a 'damned if you do and damned if you don't" situation.) And dismissing the achievements of those who prepared and worked diligently is far worse for racial relations for fire departments than it is to deny promotions to those who didn't deserve them in the first place.
The International Association of Hispanic Firefighters also made a false assumption that reversing Sotomayor’s ruling will exacerbate racial tensions across the country. The members of most fire departments don’t know anything about the Ricci v. DeStefano. (A good sample taken at my own fire department from those who are politically knowledgeable made this point quite evident to me.) However, ask firefighters how they would feel if their own promotional exam was tossed because no black entrants had scored high enough to qualify for a promotion, they would be livid. I can only imagine how tense it must be at the New Haven Fire Department even 5 years after the fact. As it stands now, you have Lieutenants at the New Haven Fire Department that should be Captains. And thanks to ruling of Sotomayor and other judges, some of those entrants who failed their promotional exams are not Captains.
And finally, the International Association of Hispanic Firefighters made a false assumption that upholding a policy that attempts to avoid discrimination cannot itself be discrimination. Their Amicus brief doesn't attempt to elaborate on how this is the case, but it does assert something pertinent for our consideration. The Amicus brief says :
This case has been framed in the media as if race in the workplace represents a zero-sum game, as if every promotion given to a person of color is an injury to a white person. This framing presumes uncritically a number of things: that white people are somehow entitled to promotions, that people of color are not, and in this particular case, that performance on standardized tests alone is a n appropriate measure of merit.
The problem with Ricci v. DeStefano is that this situation is a zero-sum game, hence Judge Souter’s statement that New Haven is “damned if you do, and damned if you don’t.” The fact that the International Association of Hispanic Firefighters cannot see this is point is rather ironic. They presume to lecture the media about making uncritical presumptions, and this is exactly what they have done in their Amicus brief.
Final Thoughts on the International Association of Hispanic Firefighters
The International Association of Hispanic Firefighter's statement that representing Ricci v. DeStefano as a zero-sum game presumes that white people are somehow entitled to promotions while people of color are not is nothing short of breathtaking. The New Haven Fire Department provided its members with two promotional exams – one for a lieutenant’s position and one for a captain’s position. The tests were weighted 60% on the written part and 40% on the verbal part. These promotional exams are nothing new to the New Haven Fire Department. They all know the style and format of these tests, and city suggested what books to study. Those that prepared well, did well. Those that slacked off, either barely passed or they failed. The black and Hispanic firefighters, generally speaking, didn’t invest the same amount of time studying as some of their white counterparts (a fact that New Haven firefighters know well). And since the exam is graded on a curve, those who wanted the promotion more generally did better than those who wanted it less. To presume that personal achievement doesn’t entitle one to a promotion even when it’s a part of a city contract is astoundingly counterintuitive and foolish.
As a Conservative/Republican all of my life I was quite proud when the GOP passed the Civil Rights bill in the 60's, because it affirms my belief that people should be considered on their merit rather than their race. However, I am also a believer in only three races, those being Black, White, and Asian. That being said, I can see Latinos as various mixtures of Spanish and Native American. Anthropologists have shown that Native Americans came from Siberia 12,000 years ago i.e. Asians or Whites. Now I have to wonder why this group is trying to carve a new race of victims out of a proud and accomplished people.
There are three problems with 'current' civil rights law.
First; among most supporters civil rights it is impossible for them to ascribe affirmative action to white males. Although progressives go through mental contortions in an attempt to define affirmative action as merely "leveling the playing field"; it is obvious to anyone paying attention that this is not so. Given any random sample of human professionals, individual attitude, life experience, education, and self discipline will play a significant part in how well they individually score on a written or oral exam. No group will ever test to the statistical population. So while affirmative action states that its goal is the leveling of the playing field; its only use is to move significant populations of favored groups into positions of authority regardless of qualifications.
The City of New Haven would not have hesitated for one minute to promote all lieutenants to Captain if the ratio had been 18 Blacks, 2 Hispanics and no Whites. In fact, if such a thing had happened I would expect the Mayor of New Haven to make some kind of public announcement, simultaneously praising himself on his enlightened attitude and excoriating the White firefighters as lazy. That Ms. Sotomayor has no problem discriminating against White Males should come as no surprise to anyone.
Second; the Civil Rights Act of 1964, since it has been translated into a numbers game, gives minorities of all persuasions a false sense of security. They have settled law to quote whenever anyone other than themselves gains promotion. No characteristics matter anymore. The prevailing attitude is; "I don't have to excel. I don't have to be good at my job. Hell, I'm a minority! If they promote anyone, including a late coming minorities before me, I'll sue!" This is exactly what the New Haven City government was concerned with. There were multiple oral interviews, each conducted by a three person team consisting of a White, a Black, and a Hispanic team member. They did everything possible to make the interview process as even as possible. The City spent tens of thousands of dollars to have a consulting firm create a written exam as free from racial bias as possible.
Firefighters that wanted promotions paid attention to the City's pronouncements of what to study. According to reports several went out of their way to buy additional texts; and at least one hired a tutor to assist in preparation for the exams. Apparently; some felt that they didn't need to prepare for this exam believing that being a member of a favored group was more than enough to cement their promotion. The major accomplishment of the Civil Rights Act of 1964 is that not only does everyone know that it is used to favor certain groups; but everyone KNOWS that everyone knows that this is its primary use.
Third; the 'unspoken' statement regarding this legislation is; "We know that minorities cannot 'hold their own' in a straight forward competition. We know that we must take their less than typical upbringing, education, and levels of self discipline and deliberately skew the playing field in their favor. This implicit promise of favoritism is what has led, over the last 45 years to the sense of reverse discrimination and entitlement that is described in the above paragraphs.
Ms. Sotomayor is one of the first liberals I've ever seen that unabashedly says that she is a product of affirmative action. She admits her grades were no match for her colleagues in school. Her writings and her courtroom behavior since then prove her statements. Overturned no less than seven times by the very court she seeks to be admitted to, her reported condescending attitude during court proceedings, and her documented methods of play both ends against the middle during 2nd Circuit deliberations paints a clear picture of her belief system.
Knowing that there is settled law that ascribes all amendments of the Bill of Rights to all US citizens, she will issue a decision that the 2nd Amendment applies to federal law only and that states may be as restrictive of this right as they wish. Knowing that discrimination may well run in either direction, she issues a ruling that favors tossing out a promotions exam that basically says that it's not even worth spending court time on.
While her appointment will not change the current balance of the court; it will significantly alter the level of achievement required of a Supreme Court Justice. If persons in general thought the Clarence Thomas lacked the stuff to ascend to the court, just wait until they get a load of Ms. 'Latina Heat'.