Sonia Sotomayor and Racial Preferences

How Obama's Supreme Court pick revived the affirmative action debate

Cathy Young | June 4, 2009

The debate over the Supreme Court nomination of Judge Sonia Sotomayor has revived the debate over racial preferences—not only because of speculation that Sotomayor herself is an "affirmative action" pick as a Hispanic woman, but also because of her role in the controversial case of Ricci v. DeStefano. It involves a lawsuit by 18 firefighters (17 whites and one Hispanic) in New Haven, Connecticut, denied promotions to lieutenant and captain because no black applicants passed the test. Fearing charges of race discrimination, the city threw out the test and left the vacancies unfilled.

Three weeks before the Sotomayor selection was announced, Washington Post columnist Richard Cohen wrote that the one issue on which he most wanted to know the future nominee's opinion was Ricci. As it happens, we know where Sotomayor stands on the case: She was one of three federal judges who, in a one-paragraph opinion, voted to dismiss the lawsuit.

Like some college admission policies that have awarded extra points for race or ethnicity and produced vast racial gaps in acceptance standards, the Ricci case—named after lead plaintiff Frank Ricci—starkly demonstrates the perniciousness of race-based preferences. It illustrates the fact that so-called "reverse discrimination" is not simply a violation of some abstract principle of justice but a system that penalizes real people. It also shows how demeaning the underlying assumptions of this form of affirmative action really are to minorities.

Ricci, who is dyslexic, had to work extra hard to pass the test. He quit a second job so that he could study up to 13 hours a day. In addition to spending $1,000 on the recommended textbooks, he paid extra to have them read on audiotape. Other plaintiffs also paid money and sacrificed time with their families to study for the promotion.

At the hearing, Judge Sotomayor suggested that the test in question was arbitrary and that the city could have devised "a fair test" to measure job-related knowledge without producing a disproportionate failure rate among minorities. But, as an attorney for the plaintiffs pointed out, the city had actually hired an expert to ensure that the test was both fair and valid as a job qualification measurement. African-American fire department officials were also consulted.

Yet, according to Judge Sotomayor, the test is unacceptable if it "is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted." That's a startlingly pessimistic assessment of black candidates' chances.

Writing in The New Republic last April, the outstanding black writer and scholar John McWhorter argues that, due to cultural differences, blacks are less likely than white or Asian Americans to grow up in an environment where writing and reading skills are emphasized. Yet McWhorter also asserts that, if Frank Ricci could overcome the effects of a cognitive disability, African-Americans can surely overcome the effects of cultural disadvantage. To expect any less and to perpetuate the notion that tests involving mental aptitude are unfair to blacks, he says, is "nonsensical at best and gruesome at worst."

There is an increasingly popular though hotly contested theory that minorities' test performance is often negatively affected by "stereotype threat," anxiety generated by the belief that members of one's group do badly on such tests. If this is true, then claims that standardized tests are biased against blacks or that blacks should be held to lower standards until the legacy of racism can be fixed (openly articulated by some commenters on McWhorter's article on the New Republic website) can only aggravate the problem.

The issue of racial preferences is surrounded by a great deal of obfuscation. Defenders of such policies commonly assert that outlawing race- and gender-based preferential treatment in education, hiring, and public services would mean an end to outreach and training programs designed to help minorities and women advance. But extra encouragement for underrepresented groups is hardly the same thing as outright discrimination against members of the majority. If New Haven city officials had instituted an outreach program to help more African-Americans pass the firefighter promotion test, a lawsuit from disgruntled whites would have found no support except on the racist fringe. Ricci and his fellow plaintiffs, on the other hand, have a strong case that, apart from its legal merits, appeals to most Americans' sense of justice.

Judge Sotomayor should not be tagged as the villain of the Ricci case. Her opinion was shared by several other federal judges. Still, her views of the issue of race and gender preferences and discrimination should be explored during the confirmation hearings.

With all the domestic and international problems we are confronting today, affirmative action may seem like a relatively minor issue. And yet it has major implications for individual rights, justice, and race relations in America. The legacy of racism, and particularly the dehumanizing oppression of generations of blacks, is a terrible blot on our history. If we try to remedy it by maintaining a new system of racial spoils—not at the expense of affluent, well-educated white elites, but of working-class, disadvantaged people who happen to be white—the blot will only deepen. So will racial division.

Cathy Young writes a weekly column for RealClearPolitics.com and is a contributing editor at Reason magazine. She blogs at http://cathyyoung.wordpress.com/. This article originally appeared at RealClearPolitics.

Comments

|6.4.09 @ 3:26PM|#

"But, as an attorney for the plaintiffs pointed out, the city had actually hired an expert to ensure that the test was both fair and valid as a job qualification measurement. African-American fire department officials were also consulted."

Question for the defenders of this decision; what promotion process was the city suppose to follow? It seems to me that hiring a testing expert and consulting with black fireman is a pretty good way to ensure that the test is fair. At some point doesn't one have to conclude that the blacks who failed it did so because they deserved to fail?

Grob|6.4.09 @ 3:30PM|#

"the test is unacceptable if it "is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted.""

Wow how do you resolve that without being racist? I can see the test writer's meeting:

Test Writer 1: OK, what do african-americans know a lot about?
Test Writer 2: Sports and chicken?
TW1: That is RACIST!!!
TW2: I thought that was the point.

|6.4.09 @ 3:56PM|#

speculation that Sotomayor herself is an "affirmative action" pick as a Hispanic woman,

Who is speculating? Obama as much as told us she was.

At some point doesn't one have to conclude that the blacks who failed it did so because they deserved to fail?

That conclusion would inevitably set up the conclusion that refusing to promote the white firefighters who passed solely because they are all white is illegal.

That conclusion is also contrary to an article of faith amongst the multi-culti crowd: that disparate impact is prima facie proof of racism. It follows that it is impossible for whites to do better than blacks in any particular circumstance without being assisted by racism.

|6.4.09 @ 3:56PM|#

Affirmative action and preferential treatment only serve to hinder the cause of justice. First of all, you are stepping all over qualified people like Ricci and his fellow plaintiffs. Although qualified, they are denied advancement because they are not black. They are denied because of their race. Affirmative action also deters the advancement of the groups it is supposed to help. If black candidates are held to a lower standard, why should they work as hard? This not only retards the personal improvement of the minority person in question, but it also results in a substandard employee. Just like socialism, why try harder if you don't have to?


As far as I am concerned, "crusaders for justice" such as Sotomayor are just as bad as the guys that run around burning crosses in their bed sheets. Such standard lowering was actually very common in the post-antebellum South. Just, back then, the standards were lowered to promote the belief that black people were inferior. Today, the standards are lowered so they don't have to improve themselves. It's not nice, but it's true.

wayne|6.4.09 @ 3:57PM|#

"If we try to remedy it by maintaining a new system of racial spoils-not at the expense of affluent, well-educated white elites, but of working-class, disadvantaged people who happen to be white-the blot will only deepen. So will racial division."

Very well put, Cathy!

tarran|6.4.09 @ 4:02PM|#

Post ante-bellum? You mean during the war? The latin for post-war is post-bellum.

|6.4.09 @ 4:13PM|#

why the hell do we always call it the antebellum south anyway? why not just "pre-war"? It's not like I go around saying I live in an "antebellum building in the east village"

Rhywun|6.4.09 @ 4:17PM|#

Connotations, domo. Different bellums (bella?).

|6.4.09 @ 4:21PM|#

That conclusion is also contrary to an article of faith amongst the multi-culti crowd: that disparate impact is prima facie proof of racism.

Only if that disparate impact involves more whites succeeding at a given enterprise. I've yet to hear a liberal bitch about how hiring practices in professional sports are racist, despite the disproportionate representation of blacks in football and basketball, except for NFL quarterbacks, which is one of the few positions where white players seem to not be in the minority.

Even team owners have a strong financial incentive to pick the best available player regardless of race when their turn comes up in the draft.

|6.4.09 @ 4:29PM|#

Three at home, four away, five when you're behind.

not the real jb|6.4.09 @ 4:45PM|#

That conclusion is also contrary to an article of faith amongst the multi-culti crowd: that disparate impact is prima facie proof of racism. It follows that it is impossible for whites to do better than blacks in any particular circumstance without being assisted by racism.

I am an expert in testing...

In law, "discrimination" is a bad thing(TM). It means that some policy has a detrimental impact on a group.

In testing, "discrimination" is a good thing. I tell my graduate students that all good tests discriminate: They tell the difference between people who are qualified and those who aren't.

Now there is also "bias." Vernacularly, "bias" is anything that finds a difference between groups.

That's overly simplistic for testing. I use my Stanley tape measure to measure each student in the class, I calculate the average height by gender... Wow! I found a biased TAPE MEASURE!

Finding a difference between groups is only the first step of establishing testing bias. The second is to find the source of the difference, and the third is demonstrate that this source is relevant to what the test was designed to measure.

When arguments against the New Haven test first came up, the consulting firm who created the test (I/O Solutions), sent the city a report on the test's potential bias. No one knows what was in that report because the city returned it unopened.

From the beginning, this case was never about the quality of the assessment, but about race politics.

|6.4.09 @ 4:48PM|#

It's not like I go around saying I live in an "antebellum building in the east village"

If you were a cosmotarian, you would.

Hammered Head|6.4.09 @ 4:48PM|#

Judge Sotomayor should not be tagged as the villain of the Ricci case. Her opinion was shared by several other federal judges.

Then simply tag them all as villians. Unfortunatly, it is affimitive action itself that drives the majority of current racism among blue-collar workers. That is the major complaint among all my drinking buddies.

Alan Vanneman|6.4.09 @ 5:01PM|#

Cathy Young ... two sides to every question ... Sonia Soto ... zzzzzz ... zzzzzz ... Nope, sorry. Couldn't handle it

Can minorities be racist?|6.4.09 @ 5:07PM|#

Are members of formerly oppressed groups entitled by past suffering to the presumption of malice (be it white, male, or otherwise) based on the same flawed racial or gender identity factors that once held them down?

Civil Discourse|6.4.09 @ 5:08PM|#

"except for NFL quarterbacks, which is one of the few positions where white players seem to not be in the"

That's changing as well. McNabb (who I just love!) was a novelty when he first played QB.

Hammered Head|6.4.09 @ 5:09PM|#

I should have added that one of my drinking buddies is a Dallas fireman and he just won't shut up about the racist promotion polices of the DFD. I strongly beleive that affiritive action has severly damaged race ralations in our country and along with the drug war, has reduced the level of ambition in many minority communities.

Hammered Head|6.4.09 @ 5:11PM|#

Dang it is affirmative, I can't seem to spell when I am sober.

Civil Discourse|6.4.09 @ 5:13PM|#

"I strongly beleive that affiritive action has severly damaged race ralations in our country and along with the drug war, has reduced the level of ambition in many minority communities."

I agree with your assessment. So what's the remedy?

Barry Loberfeld|6.4.09 @ 5:22PM|#

Affirmative action vs. libertarianism: the fundamental conflict

Hammered Head|6.4.09 @ 5:30PM|#

I agree with your assessment. So what's the remedy?

Obviously it is to follow Dr Kings message about judging on individual merit more closely and ending all collectivist special group-oriented government policies. They are harmful and unconstitutional based on equal protection under the law. Ending the drug war would be helpful too. I am not really sure how to end them other than Libertarians focusing on the harm it causes these special groups instead of the inherent immorality of the polices.

|6.4.09 @ 6:04PM|#

this confuses me:

"extra encouragement for underrepresented groups is hardly the same thing as outright discrimination against members of the majority."

Often the effect is the same. Let's say we only gave below average teams .01 extra encouragement to play a variety of sports. That would be negligible in basketball, basically meaningless in football, quite meaningful in baseball, and huge in soccer.

|6.4.09 @ 6:04PM|#

thread highjack

discussion over gun rights at the economist

http://www.economist.com/world/unitedstates/displayStory.cfm?story_id=13788623&mode=commentcommentStartPosition

|6.5.09 @ 1:28AM|#

So an affirmative action nomination to serve on the United States Supreme Court is a bad thing? Ask those who supported the confirmation of Clarence Uncle Thomas.

|6.5.09 @ 3:44AM|#

"Judge Sotomayor should not be tagged as the villain of the Ricci case."

Indeed. If conservatives hate activist judges who "legislate from the bench", then Sotomayor is their cup of tea. In this case, not only did she *decline* to overrule long-standing Supreme Court precedent, but she *deferred* to the clear wording of the relevant Congressional legislation.

Libertarians are certainly opposed to any kind of "reverse discrimination", but it wasn't Sotomayor's place to overturn it and all of the Republican judges on the same court agreed with her.

Fault her based on the facts and philosophy, but she has *not* been an "Activist Judge" in any of her 300+ rulings to date.

She needs to be quizzed thoroughly during the confirmation hearings, but we need to judge her on the facts-of-the-matter in the cases where she's ruled.

|6.5.09 @ 4:12AM|#

except for NFL quarterbacks, which is one of the few positions where white players seem to not be in the minority.

Yeah. I mean there are white placekickers, punters, QBs, TEs and OLs, but it is kind of odd that there are only like, 2 white running backs.

Raaaaacist

But seriously

That conclusion is also contrary to an article of faith amongst the multi-culti crowd: that disparate impact is prima facie proof of racism.

Well put, RC Dean. Also, why are there so few black pitchers in MLB? And why are almost (actually?) all the Asian guys in the NBA foreign? Raaaaacist

Ebeneezer Scrooge|6.5.09 @ 5:10AM|#

"If we try to remedy it by maintaining a new system of racial spoils-not at the expense of affluent, well-educated white elites, but of working-class, disadvantaged people who happen to be white-the blot will only deepen. So will racial division."

Except that the "remedy" is in fact beginning to be applied at the expense of well-educated white elites.

Or haven't you been keeping up with affirmative action in universities for the past 20 years or so? Those same standards are now spilling over into industry at large.

I hereby put myself forward as a case in point. As a white male, affirmative action was a key reason I did not become a professor after finishing my PhD. By graduation (over a decade ago now) I was already tired of seeing huge research grants get thrown at minority professors, while the white guys had to work twice as hard to pull in anything.

In industry today I'm starting to see white male engineers denied promotions because of race. The company won't opening admit there is a quota, everybody knows there is.


In case it isn't clear to anybody, creating racial division is exactly what the Left wants. That, and they're building The Shrine To Incompetence.

Paul Rako|6.5.09 @ 8:23AM|#

So the next Supreme Court justice is Carla from the TV shows Scrubs. We could do a lot worse. I just saw the re-run where she admits: "So I'm insecure and I judge other people to make up for it." Other than McCain losing, this is the best news in a decade.

Rich|6.6.09 @ 9:51AM|#

1) So a test is *unacceptable* if it is "always going to put a certain group at the bottom"? Say what? This is the very purpose of testing. The "certain group" merely comprises those who cannot meet the standard. Any reasons/excuses for not meeting the standard are a separate (ill-defined) issue. 2) Sotomayor will of course be confirmed. However, Ricci should be called to testify at her hearings.

bt6|6.7.09 @ 10:42PM|#

I hope that if Sotomayer's house is ever on fire, the first engine in is crewed by firefighters who got there because of race instead of ability.

It's time our imperial class starts suffering the consequences of their actions.