Sotomayor vs. Ricci
Tibor R. Machan
During the Senate Judiciary Committee hearing
about whether Judge Sonia Sotomayor should be nominated to the U. S. Supreme
Court, a nomination which if approved by the committee’s majority would then go
to the full Senate for a vote (that the Judge is assured to win), one of the
most controversial issues discussed was the Judge’s signing on to a very brief
ruling affirming a lower court’s decision to support a city government’s
invalidation of a test for firefighters which the majority—all of them
"white" though one of Puerto Rican background—had passed. This group
who passed the test sued the city for what it did after the test had been
Now I am no expert at the laws governing these
kinds of cases but I do give and have given tests to students over my 40 year
career as a college professor. And from my experience, which has involved
applying standards of fairness in the course of grading my students, it seems
clear that there was something amiss about what the city did. Here is how Emily
Bazelon of Slate described the background of the case in her May 26, 2009,
"In 2003, the city of New Haven, Conn.,
decided to base future promotions in its firefighting force—there were seven
for captain and eight for lieutenant—primarily on a written test. The city paid
an outside consultant to design the test so that it would be job-related.
Firefighters studied for months. Of the 41 applicants who took the captain
exam, eight were black; of the 77 who took the lieutenant exam, 19 were black.
None of the African-American candidates scored high enough to be promoted. For
both positions, only two of 29 Hispanics qualified for promotion." In
consequences the city through out the results of the test. And this is what the
fire fighters, lead by Ricci, protested in their lawsuit.
Suppose I announce at the start of my class that
there will be two papers and a final given to determine what grade a student
will receive. When I receive the papers and the test from them, I notice that
all the male students who took them did badly, while all the female ones did
well. So I decide to scrap these results and devise a new and different method
for grading my students.
Those who passed the tests would be fully
justified in protesting—unless the test contained some major infelicities, such
as grossly incoherent questions—and what I would have done could by no stretch
of the imagination be considered sound, valid, or justified.
The Ricci case, as far as I can grasp it, is no
different. Maybe a future test could warrant modification but not the one for
which the firefighters prepared and which they then took in good faith,
believing that the tests will be instrumental in their quest for promotion.
I am puzzled, though, why anyone would find what
the city officials of New Haven, Connecticut, and the panel of judges that
included Sotomayor did
kosher. If there is any place for concern about
fairness, surely it is when tests are administered in cases such as that
involving the New Haven firefighters. If the test that was administered was,
despite all efforts, flawed and treated the minority group among the
firefighters wrongly, the approach that would be required is to revise the test
for its future use. This seems to me plainly true and not very complicated.
But it seems that the eagerness to apply nearly
any version of affirmative action policies has blinded a lot of folks to all
this. Even if one accepts the policy of government mandated affirmative
action—which is a highly debatable one for sure in a country that is set on
eliminating racial and ethnic criteria from its public policies—the good faith
effort shown in New Haven in designing a good test should suffice to have the
test results be binding.
The reason this is a key issue in Judge
Sotomayor’s hearings is that what she did suggests that she may indeed fail to
appreciate that the law needs to be color blind or neutral about people’s
background, ethnicity, and so forth—about matters, in other words, that are
irrelevant to a candidate’s suitability for a job. The rule of law means just
this, namely, what rules is an impartial law, not any judge’s preference.