Those assuming that the Supreme Court’s anticipated reversal of that New Haven firefighters reverse discrimination case would be an awkward setback for Supreme Court nominee Judge Sonia Sotomayor, need to do some re-evaluating.
The decision was 5-4 to reverse the appeals court decision joined by Sotomayor. That means four other Supreme Court justices agreed with the Sotomayor position. Hardly a mandate; merely another Anthony Kennedy tie-break.
But it is troubling that four justices bought the fear-of-litigation rationale for tossing out test results when black candidates didn’t finish high enough to qualify for promotions.
Ours is an ipso facto, obscenely litigious society. New Haven, ironically, hardly helped by the way it tried to pre-empt legal action. The city was more concerned with being sued by black firefighters, none of whom did well enough on the test to qualify for promotion, than doing the right thing. Its craven response carried this less-than-sub-rosa message: “Indeed, we respond to intimidation. Your barely-veiled threats worked. We’re caving. We believe in equal opportunity, but we really, really believe in equal results.”
Left unsaid, but not unthought: Next time there’s a test to determine promotions, how about a head’s up beforehand if such a criterion appears to be biased? Don’t just self-servingly infer as much when you don’t like the results.
And maybe it’s Justice Ruth Bader Ginsburg, the lodestar of the minority on this one, who should be stepping down instead of Justice David Souter. Ginsburg said the white firefighters had “no vested right to promotion.”
Oh.
Didn’t they, however, have a right, vested or otherwise, to expect the results of an agreed-upon, qualifying test for promotion — absent an iota of proof of bias — to be as determinative as promised? Didn’t they have a right not to be discriminated against? Didn’t their here-and-now-and-qualified rights trump a white guilt-motivated, bias-based remedy for discrimination sins of the past?
Unless, of course, equal opportunity is synonymous with equal results – regardless of criteria.