Sonia Sotomayor and Racial Preferences

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


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.