Is it conceivable in this day and age that a court would uphold the right of an employer to throw out test results if blacks were the highest scorers? (And remember, as Judge Cabranes noted, the tests in this case were carefully constructed to ensure that no racial bias existed in the questions.) We'd be rightly appalled if the shoe were on the other foot and high-scoring blacks were denied promotions because the city preferred to promote whites. We should be just as disturbed when the city chooses to deny white and Hispanic firefighters promotions they deserve. Race shouldn't determine who gets promoted, period.
You'd think we'd have learned this lesson long ago, but apparently not -- and the effects have had pernicious consequences. We may not have totally eliminated racial prejudice, but promoting less-qualified individuals in the name of diversity undermines our sense of fairness. It also casts doubt on the abilities of even well-qualified members of the racial group that has received favored treatment.
Nonetheless, the case will likely be a close call for Supreme Court justices, not based on the merits but because the court is split almost evenly. Four justices think discrimination is OK, so long as it doesn't disadvantage minorities, and four believe that the civil rights laws and Constitution apply equally to all persons, regardless of their race. The man in the middle, Justice Anthony Kennedy, is often skeptical of race-based preferences, but occasionally votes with those who want to take race into account. How he votes when the court hands down its decision later this year will likely determine this case.
Is it too much to hope that someday we'll get beyond race in this country? The only way to get there is by outlawing discrimination against anyone because of race.
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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