Linda Chavez

There was a time in America when the color of your skin determined whether or not you could get a job or promotion. Thankfully, Congress outlawed such practices in 1964, and we are a better country for it. But just this week, the U.S. Supreme Court heard a case that could determine that discrimination is OK, so long as its victims are not black.

The case was brought by a group of New Haven, Conn., firefighters who had taken a civil service test to become lieutenants or captains but were denied promotion because the city didn't like the racial outcome of the test results. The highest-scoring firefighters were whites and Hispanics. No blacks scored high enough to be promoted, so the city decided to throw out the test results, and 17 white firefighters and one Hispanic, who were denied promotions, sued.

One of the more interesting aspects of this case involves the individual plaintiffs -- at least one of whom is an ethnic minority, Hispanic, and another who is dyslexic. Frank Ricci, the lead plaintiff, quit a second job so he could study for the test and hired someone to make audiotapes so he could better prepare for the exams. Despite his reading disability, Ricci places sixth out of 77 of those taking the lieutenants' exam. How can anyone claim that denying this man a promotion because he happens to be white is right, much less legal?

A lower court supported the city's decision to throw out the test results, without a full hearing, and a three-judge panel of the Second Circuit Court of Appeals affirmed the decision. When plaintiffs appealed to have the case heard by all 13 members of the Appeals Court, the court split 7-6 against hearing the appeal.

A Clinton-appointed judge, Jose Cabranes, issued an eloquent dissent: "At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?" It's exactly the right question to ask.

Linda Chavez

Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .

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