“This backdrop of entrenched inequality”
Affirmative Action in Work
Even after Americans agreed that systems of Jim Crow segregation should finally be laid to rest, great policy questions remained.1 How might all the persisting racial gaps displaying the damage Jim Crow laws and practices wreaked on the nation somehow be overcome? Since the mid-1960s, Americans have struggled to climb out of the quagmire of racial inequalities that government policies did so much to create. Americans continue to struggle today—by wrestling over choices now defined by the modern racial alliances, in ways that can block concerted quests for paths to progress.
Those realities were dramatized when just weeks before Justice Sonia Sotomayor was confirmed by the Senate Judiciary Committee to be a member of the U.S. Supreme Court in July 2009, the Court issued a major ruling on government involvement in race and employment patterns, Ricci V. DeStefano.2 The City of New Haven, Connecticut, led by Mayor John DeStefano, had used a largely multiple choice, 60 percent written, 40 percent oral test in 2003 as its primary method of selecting municipal firefighters for promotion to lieutenant and captain positions. Though some African American candidates scored high enough to pass the bar for promotion, their scores were too far below those of one Latino and nineteen white candidates for them to have any chance of receiving one of the few officer posts available. Believing that there were African American firefighters possessing the requisite skills to be officers, New Haven officials worried that the results might violate the ban on selection methods with avoidable racially “disparate impacts” that Congress had adopted in 1991 as an amendment to Title VII of the 1964 Civil Rights Act. They decided not to certify the test results, and to start anew.
Firefighter Frank Ricci, who had overcome a learning disability to score well through rigorous study, joined with the other high-scoring candidates and sued the city for refusing to use their test scores in its promotion decisions. They deemed the city’s action to be “disparate treatment” of employees on the basis of race, a violation of federal law ever since Title VII was first adopted.