Why Judge Sotomayor was right on affirmative action related law and why we should not back down

Don't be fooled or backed down by right wing hyperventilation about affirmative action

Justice Sotomayor has been criticized by right wing sources for her joining a ruling that stated that: "municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination" (Summary not a quotation from the ruling).
http://www.scotuswiki.com/index.php?title=Ricci%2C_et_al._v._DeStefano%2C_et_al.

Her decision was correct.


Affirmative action and related law is not discrimination and is constitutional

The following segment for oral arguments in Ricci v. DeStefano Justice Breyer illustrates one of the many ways policy makers can take race and gender into account without crossing any legal line:

Justice Breyer: A university decides that tenure requirements lead to fewer women professors, so they say as an experiment what we would like to do is not have them for a couple of years; see what happens. On your view is that unconstitutional? Because, after all, it would certainly mean that certain majority race assistant professors have now lost the promotion they otherwise would have...

Mr. Coleman (Attorney On behalf of the Petitioners): Based on that alone?

Justice Breyer: Yes.

Mr. Coleman: No, it would not be.

Justice Breyer: It would not be unconstitutional?

Mr. Coleman: Your not taking tenure away from anybody.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-1428.pdf


Race-conscious decision making is nearly the opposite of overt racism

Justice Souter also consistently pointed out the difference between overt racism and race conscious decision making designed to reduce the effects of racism:

"If your argument is going to be coherent with what we start with, it can't be based merely on the use of race because if it does, then you are, in effect, turning a race conscious decision into a discrimination decision, and that equation we certainly haven't made and were never going to make."


Such policies are still functional and needed

Justice O'Connor once, in approving affirmative action, stated: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
http://www.law.cornell.edu/supct/html/02-241.ZO.html

It has not been 25 years since that 2003 ruling and as Justice Breyer and Ginsburg noted in response to this near deadline:

"One may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action."
http://www.law.cornell.edu/supct/html/02-241.ZC.html

Aff. action is a federal program that an entity must comply with (in certain instances). The program requires an entity to file reports w/the fed. govt to prove who applied for all job vacancies (ethnicity, age, gender, etc.), identify all the jobs and salaries, identify who got hired, specifically state why the non-hired weren't hired, etc., and in the end run numbers to show percentages of all ethnicities, ages, and genders in all jobs in the company. Phew. It is as complicated, and expensive, as it sounds. The program papers have to be filed periodically.

This case wasn't about complying with affirmative action. The test scores were thrown out because the fire dept. "was afraid" that because no Af. Americans made the required grade, it would be sued for discrimination (under the Civil Rights Act, I guess). One hispanic made the grade; all others who made the grade for promotion were caucasian.

The reason I didn't think the appellate decision was right was because: the test was not shown to be discriminatory; it was a breach of a promise to the workers that if they took that test and made a certain grade, that they'd be promoted; the reason the workers were denied their promotions was solely because of their race or ethnicity (by admission of the fire dept.).

I read what one of the white workers did to pass the test. He quit a second job he had, so that he could study. He studied religiously for 6 to 13 weeks or something like that. He took some sort of course, as well, to prepare him for the test. This test cost this guy money, a lot of time, and a good deal of sweat. When he took the test, he passed, only because he'd spent weeks preparing for it. It strikes my gut that to deny him the promotion he worked so hard for, because of his race, is the essence of racial discrimination. This applies to the hispanic worker, also. This IS what racial discrimination is.

The trial court found that it was racial discrimination to deny these workers their promotion. The other side alleged that the test was discriminatory, but nothing specific, I guess. In any case, the trial court found that the test wasn't discriminatory.

The appellate court, in reversing the trial court, didn't find any facts about the test. What that court said was...well, the test was thrown out, so it doesn't matter. It's not like the Af. American workers were promoted with failing grades and the white ones weren't. They can take a new test later.

After what these guys did already to prepare for the test, now they have to do it again? Why? And what if the same ones pass again? Will the test scores be thrown out again? Who can rely on the fire dept.'s promise of promotion, now?

It just seems unfair and discriminatory to the workers who studied hard and sacrificed and made the grade. And I would believe that, no matter what their race.

have to show that the tested needed to be thrown out? Chief Justice Roberts asked about the possibility of a second test showing the same results and it was stipulated that the city would need to "go forward with the test."

But a concern that the test had a disparate impact on race can be a consideration.

And the test was flawed for other reasons:


http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-1428.pdf