Ricci and the future of race in America

We're witnessing the beginning of the end of affirmative action.

Discrimination in employment on the basis of race, sex, skin color, ethnicity, or national origin is a violation of the 1964 Civil Rights Act. Yet that fact seems to either go unnoticed or is considered irrelevant by many public officials.

For decades, public universities, police departments, fire departments, and other public institutions have been implementing, with reckless abandon, policies and practices that promote diversity. Essentially, the term "diversity" has become an acceptable excuse to discriminate.

The underlying rationale for such discrimination is that women and minorities are, almost by definition, disadvantaged and that white males are privileged in America by reason of their sex and color.

The extent of what some describe as reverse discrimination, particularly against those who are white and male, has been increasing for years, but the fear of being ridiculed or called a racist has deterred many from filing claims against their employers for such conduct.

Frank Ricci and his fellow firefighters have radically altered the dynamics of "reverse discrimination." Even if the Supreme Court's 5-to-4 decision last month in Ricci v. DeStefano does not change the law governing employment discrimination, it certainly changes the attitude of those who are white and male and happen to believe that they have been on the receiving end of differential treatment by their employer on the basis of their race.

Mr. Ricci is a white firefighter in New Haven, Conn. He and 19 other white and Hispanic firefighters had passed a promotion exam, only to have the results thrown out after it was determined that no black firefighters had passed the test at a sufficiently competitive level. Such action is not uncommon in universities and other public agencies that want their workforce to, as they often put it, "reflect the racial and ethnic composition of the community."

To justify the decision to toss out the test, New Haven argued that the test results confirmed a bias against blacks. In legal terms, this is called "disparate impact." In short, if the test's design (even if unintentional) kept blacks from passing at nearly the same rate as others, then the city could have been sued for discriminating against blacks.

The Supreme Court's majority concluded, however, that the test had been thoroughly vetted and found to be free of bias. Rather, New Haven simply caved to pressure from influential local blacks, such as a very close personal friend and political ally of the mayor, the Rev. Boise Kimber, who objected to the fact that no blacks would be promoted if the test results were to be accepted.

In a separate concurring opinion, Justice Samuel Alito documented in elaborate detail the extent of the political shenanigans that were involved in the decertification of the test results.

Such action, the court concluded, was "disparate treatment," not disparate impact. Disparate treatment is another way of saying that the city directly discriminated against Ricci and the other high-scoring firefighters. This is the primary result of the Ricci case.

Because the court did not resolve the disparate-impact provision, the legal reach and effect of the Ricci case will be quite limited, contrary to media and other reports that suggest a major effect. Justice Antonin Scalia highlighted this fact and specifically noted in a concurring opinion that at some point the court must confront the constitutional conflict that exists between disparate-impact provisions and the Equal Protection Clause of the 14th Amendment to the Constitution.

Clearly, the Ricci decision represents somewhat of a legal milestone. With this decision, the court undoes much of the damage that it has done for more than three decades through a series of decisions that violate the simple command of the 1964 Civil Rights Act: The government should not discriminate on the basis of race in employment hiring and promotion.

But the more important milestone is cultural. The cultural significance of Ricci lies in the fact that it will promote a new era of awareness that the Civil Rights Act applies to white males as much as it applies to black people and women.

Once the American people and all public institutions accept the reality that civil rights are not just for black people, our nation will be well on its way to reaching that point at which race, as President John F. Kennedy envisioned, "has no place in American life or law."

When viewed in the context of other public events, such as the action of the Arizona Legislature to place an initiative on the 2010 Statewide Ballot to end race and ethnic preferences, and a host of public-opinion polls that confirm overwhelming public opposition to race preferences, the Ricci decision suggests that we are witnessing the beginning of the end of affirmative action preferences.

Ward Connerly is president of the American Civil Rights Coalition, a former regent of the University of California, and author of a newly released memoir, "Lessons From My Uncle James: Beyond Skin Color to the Content of Our Character."

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